Crothers v Accident Compensation Corporation
[2017] NZHC 1952
•16 August 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-004 [2017] NZHC 1952
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an appeal to the High Court pursuant to s 162 of the Act
BETWEEN
PAUL STANLEY CROTHERS Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 28 June 2017 Counsel:
T J McGurk for Applicant
D A Laurenson QC and F L Becroft for RespondentJudgment:
16 August 2017
JUDGMENT OF THOMAS J
Introduction
[1] The applicant, Paul Crothers, seeks leave to appeal to the Court of Appeal a decision of the High Court (the High Court Decision),1 which dismissed an appeal against a decision of the District Court (the District Court Decision).2 The proceedings involve an assessment under s 103(2) of the Accident Compensation Act
2001 (the Act) of whether Mr Crothers was unable, because of a personal injury, to
engage in his prior employment as a farmer.
1 Crothers v Accident Compensation Corp [2017] NZHC 259 [High Court Decision].
2 Crothers v Accident Compensation Corp [2015] NZACC 10 [District Court Decision].
CROTHERS v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 1952 [16 August 2017]
Background
[2] Mr Crothers is a self-employed sheep and beef farmer from Mangamahu in the Whanganui district. In July 2010, he suffered an injury which resulted in the partial amputation of his left ring finger. This reduced his grip strength and affected his ability to do certain tasks around the farm. Soon after the injury, Mr Crothers employed his son to do work which Mr Crothers was unable to do because of his injury.
[3] Mr Crothers received weekly compensation under the Act. In August 2011, he applied to the Accident Compensation Corporation (ACC) for funding to purchase an all-terrain vehicle (ATV) with power steering pursuant to ACC’s vocational rehabilitation responsibilities.3 ACC rejected the request and terminated Mr Crothers’ weekly compensation pursuant to s 103(2).
[4] Applications for review and an appeal to the District Court were dismissed.4
The District Court gave leave to appeal in relation to the issue of weekly compensation, there being no application for leave to appeal with respect to the ATV decision.5 Despite the terms set by the District Court on the application for leave to appeal, the parties agreed the question for the High Court was:
Did the District Court apply the correct test under s 103(2)?
[5] The High Court dismissed the appeal.6
[6] Mr Crothers now seeks leave to appeal the High Court Decision on the basis the High Court made two errors of law. First, the High Court was wrong in law to hold a reasonable adaptation test should be applied when assessing whether there is incapacity under s 103(2) in the case of a self-employed person. He says the High Court was wrong to apply that test because it focuses on the capacity or
availability of employees to carry out key tasks of the claimant’s pre-injury
3 Accident Compensation Act 2001 [the Act], s 85.
4 The review was pursued under s 134 of the Act. The appeal was pursued under s 149: Crothers v Accident Compensation Corp, above n 2.
5 Crothers v Accident Compensation Corp [2015] NZACC 383.
6 Crothers v Accident Compensation Corp, above n 1.
employment, whereas the focus should be only on the ability of the claimant to carry out those tasks.
[7] Secondly, Mr Crothers submits the High Court was wrong in law to substitute its own factual finding in place of that of the District Court. This relates to the High Court’s finding that Mr Crothers’ son was no longer employed for the purpose of carrying out key tasks Mr Crothers could not perform himself because of his injury, whereas Mr Crothers’ position is that the District Court found Mr Crothers’ son did perform those tasks.
[8] ACC opposes leave being granted in respect of both questions of law. It opposes the first question on the basis it is not in the interests of justice to grant leave because the question of law is immaterial to the outcome of Mr Crothers’ claim he was entitled to weekly compensation. ACC’s position is that neither the District Court nor the High Court held Mr Crothers had regained pre-injury capacity because his son could perform pre-injury tasks Mr Crothers was unable to perform. Therefore the outcome for Mr Crothers would be the same under both the District Court and High Court Decisions, even if the Court of Appeal were to decide the analysis under s 103(2) does not extend to the ability of existing employees to carry out key tasks. ACC opposes leave in respect of the second question because it considers it is based on a false premise and so does not raise any seriously arguable question of law. ACC says not only did the High Court not substitute its factual finding, but neither Court made the factual findings alleged by Mr Crothers.
Leave principles
[9] The principles relevant to applications for leave to appeal under s 163 of the
Act can be expressed as follows:7
(a) there must be a serious question of law capable of bona fide and serious argument;
7 Cullen v Accident Compensation Corp [2014] NZCA 94 at [5].
(b)the case must involve some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal;
(c) the primary focus is on whether the question of law is worthy of consideration; and
(d)other relevant considerations include the desirability of finality of litigation and the overall interests of justice.
[10] It will not be in the interests of justice to hear a proposed appeal concerning a question of law which is not likely to be material to the outcome of the case.8
[11] A decision may give rise to a question of law if it:9
(a) misinterprets, and so misdirects itself on, the law;
(b) overlooks any relevant matter to the proper application of the law;
(c) takes account of any matter which is irrelevant to the proper application of the law; or
(d)reaches an ultimate conclusion on the facts which is insupportable – clearly untenable – because the proper application of the law requires a different answer.
The District Court Decision
[12] The crucial parts of the District Court Decision are set out at [29]–[34].10
Given their importance to the question of leave to appeal, I set them out in full:
[29] The first paragraph of Dr Turner’s report considered an example
apparently based on the authority of Irving v ACC (High Court Whangarei,
8 Loktronic Industries Ltd v Diver [2012] NZSC 77 at [2]–[3]; and Loktronic Industries Ltd v
Diver [2012] NZSC 60 at [5].
9 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52]; and Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[27].
10 District Court Decision, above n 2.
AP 53/01, 11 April 2003, Laurenson J) which held that capacity does not depend on ability to perform individual work tasks in a particular job, if the claimant is otherwise able to engage in the work required of the generic type of employment which he was engaged in before his injury. Dr Turner referred to the analogy of a tanker driver who could return to work as a driver although not necessarily as a tanker driver. That test is not readily applicable to an owner operated business that requires the operator to perform specific work tasks. The question should not be whether the appellant was substantially able to perform his pre-injury work tasks, but whether he was able to continue his farming business with reasonable adaptation. That might involve exchanging some work tasks with employees or in this case family members who are available for work, and reorganising work so that steep terrain could be managed in fair weather. It would involve riding with more caution for his left hand grip, provided that could be done with safety.
[30] Dr Turner’s analogy did not fit the appellant’s case, but his report contained an assessment of capacity that addressed the capacity questions in these two appeals. Certainly the evidence has to be weighed with care given that Dr Turner may have considered an incorrect test of partial capacity.
[31] On reading Dr Turner’s opinion in full, I think that he gave proper consideration to the appellant’s circumstances and the extent of disability. He referred to the appellant’s adaptation to using his ATV while making allowance for his reduced left hand grip strength. In my view Dr Turner’s reference to substantial capacity is interchangeable with his description of adaptability and does not undermine his conclusions. Dr Turner’s knowledge of work tasks depended on the appellant’s own descriptions, but as an occupational specialist he was able to gain a realistic view of the appellant’s ability to engage in pre-injury employment. His assessment was derived from clinical examination and evaluation of the medical history and carries more weight than the report by Mr Morris which was largely derived from the appellant’s own reporting.
[32] There is no doubt that the proposed vehicle had considerable appeal for improved efficiency and would enable the appellant to carry [out] all his farm duties with more confidence, however the balance of the evidence leads to the conclusion that the appellant regained pre-injury capacity. Capacity is concerned with the realistic ability to engage in pre-injury employment despite inconvenience and in many cases a degree of tolerable pain.
[33] The evidence does not clearly show that the appellant could not carry on his pre-injury employment without taking an unreasonable or inappropriate risk of further injury. There is no reasonably persuasive assessment to that effect. It is a case in which the appellant was able to carry out almost all of his pre-injury tasks, and was assessed as being able to ride his quad bike on rough or steep terrain while avoiding over-reliance on his left hand grip and scheduling work to avoid unsafe weather conditions.
[34] The real concern is one of safety rather than one of capacity. They are interrelated because unsafe or ineffective performance of work tasks could not meet the statutory test. A reduced margin of safety does not necessarily lead to a determination of incapacity for pre-injury employment, and may have to be tolerated where the manner of work before injury already carried a degree of risk. It may well be fair to give the claimant the
benefit of the doubt in favour of compensation that ensures the safest outcome, but it is an area that falls within the Corporation’s discretion and cannot be overruled unless it is demonstrably wrong.
The second proposed question of law: was the High Court wrong in law to substitute its factual finding for that of the District Court?
[13] I propose to deal with the second proposed question first because its outcome has an impact on the first.
[14] Mr Crothers puts it this way:
The High Court was wrong to conclude that employment of Mr Crothers’ son was no longer for the purpose of carrying out key tasks that Mr Crothers could not perform himself because of his injury. The District Court accepted that Mr Crothers’ son did perform those tasks and accordingly took that into account when adopting the test of reasonable adaptation. It is not within the High Court’s function as an appellate body to substitute a factual determination of the Court below with its own factual conclusion.
[15] Mr McGurk appeared for Mr Crothers. In his submission, it was common ground at the District Court hearing that Mr Crothers’ son was doing tasks on the farm which Mr Crothers was unable to do. Mr Crothers employed no other workers prior to his injury. His son began working on the farm shortly after the accident to undertake tasks which Mr Crothers’ injuries prevented him from performing himself. These tasks included fencing, scrub cutting, operating a chainsaw, and transporting Mr Crothers to remote areas of the farm he was unable to access unless he had an ATV with power steering.
[16] In the context of outlining events after the injury, the introductory part of the
District Court Decision records:11
Mr Crothers was able to attend to medium work tasks and was assisted by his youngest son.
[17] It then records Mr Crothers as saying:
[5] … [his] capacity to engage in his pre-injury employment depended on his having a farm bike that he could use safely, and for that purpose he needed a suitable vehicle with power steering. He accepts that he would have regained working capacity if he had a bike and argues that the
11 At [3].
Corporation should have either continued his weekly compensation or assisted with purchase of the bike so that he could engage in his pre-injury employment.
[6] The appellant’s son worked on the farm and, at least for the time being, was able to do the work that Mr Crothers found difficult, in particular using a chainsaw or some power tools and riding the quad bike in hilly country.
[18] In Mr McGurk’s submission, despite the District Court Judge having implicitly or explicitly recognised the need for Mr Crothers’s son to continue to perform some of the core tasks, Williams J reversed the District Court’s factual findings, concluding the employment of Mr Crothers’s son was no longer for the purpose of carrying out key tasks Mr Crothers’ injury prevented him from
undertaking. 12
[19] Williams J referred to an inconsistency in the evidence, saying:
[57] … On the one hand, Mr Crothers indicated he had to continue employing his son, and on the other hand indicated that the ATV had solved his problems in September of that year [2011].
[20] Williams J concluded:
[59] Given Mr Crothers’ inconsistent statements in relation to his son’s contribution to his core farming tasks, the conclusion the Judge reached was open to him on the reasonable adaptation test. I would answer yes to the question even though the Judge did not expressly articulate it in the core task terms I have in this judgment. It is clear, in my view, that the Judge applied the reasonable adaptation test in a way that, in substance, concluded that Mr Crothers could perform all of his core farming tasks albeit with a decreased (but still acceptable) margin of safety. ...
[21] In Mr McGurk’s submission, the District Court Decision found at [29] that
part of the reasonable adaptation was the availability of Mr Crothers’ family to do
work.
12 Mr McGurk also maintained the High Court reversed a second factual finding of the District Court which was not in fact under appeal, that being whether an ATV with power steering would facilitate the restoration of Mr Crothers’ pre-injury capacity. Mr McGurk said the High Court reversed that finding, concluding pre-injury capacity was attained because of the applicant’s purchase of an ATV with power steering.
[22] ACC’s position is that the District Court Judge set out the test at [29], then considered the evidence and reached a conclusion. His Honour’s conclusion, as set out at [32]–[33], was that Mr Crothers was able to carry out almost all of his pre-injury tasks and could use his existing quad bike by avoiding over-reliance on his left hand grip and scheduling work to avoid unsafe weather conditions.
What was the evidence?
[23] Mr McGurk said, at the time of the ACC review in October 2013, Mr Crothers’ son continued to perform some of those core tasks. In support of that he referred to the transcript of the review hearing when Mr Crothers said fencing was very difficult for him, particularly boring holes for posts.13 Mr Crothers said:14
I still can’t do that on the hills. Like, it’s just impossible. It’s just – so my son does all that work. And unfortunately if you can’t put – drill the holes, you can’t really build a fence. Not to mention carrying the – lifting and carrying the heavy – heavy posts, you know, particularly the strainers is a – is a challenge for me as well. So my son does that. He still does that.
[24] And later, when asked whether his son still helped him, Mr Crothers said:15
Yes he does. And I still do have some – have some issues. There’s still some things I can’t do. However, there’s a lot more that I can do too.
[25] When asked what percentage of pre-injury work Mr Crothers was now able to undertake, Mr Crothers stated it was hard to answer:16
The main reason it’s difficult to answer is because now – because my son’s stayed on, and there’s a number of reasons why that’s happened, but you know, without going into detail we’ve had to – we’ve intensified the farm and we’ve changed – we’re now doing a lot of cultivation work. So the jobs that I – the jobs have evolved as well.
… I can probably do about 60 per cent. … It may be a bit more.
[26] Mr Crothers’ surgeon, Mr Lowden, said his letter dated 20 December 2011:
I suspect in the long term he will probably have about two thirds of the grip strength on his left side of the normal right side. This is likely to cause him some difficulty with some activities in his occupation, but in particular I note
13 Application for Review, notes of evidence of Mr Crothers, 16 October 2013, at 6.
14 At 7.
15 At 15.
16 At 18–19.
that it has been causing him trouble with riding a quad bike, and he has had to make modification to the quad bike in order to render it safe and prevent any further injury. He has done this by trading to a power steering model, which has kept him working, and made it much easier to do a lot of his normal tasks, although he is still not able to do all of his normal tasks.
[27] Dr Turner’s report, to which the District Court Judge attached weight, was dated 30 August 2011. In discussing the background, Dr Turner considered two aspects of Mr Crothers’ work. Relevantly, he recorded the following:
Paul reported that he was confident that he could undertake scrub cutting activities to a certain extent. The current issue was in relation to be[ing] able to ride his four wheeler, which was mainly related to gaining access to parts of the farm and not whether he could complete the scrub cutting activity. He had a number of options with respect to farm access. These include deploying his son to the steep hill country jobs to complete scrub cutting activities, postponing such activities until the farm conditions are less wet, which he confirms is a possibility, or having his son delivering him to an acceptable access point where he can work independently or with his son if he wishes. …
It was noted that he had completed one section of fencing however he did not complete the next part of the job because his son became unwell with the flu. The hole boring activity went well and he was pleased to have completed a small amount of this task. … The vibrations were a little challenging for him.
[28] Dr Turner also reported on the progress report from Mr Crothers’ hand
therapist on 1 August 2011, saying:
Restrictions related to heavy lifting, operating chainsaws for long periods, operating 4 wheel motorbikes on hills and slippery terrain.
[29] Reporting on his physical findings, Dr Turner said:
He indicated that he has done limited chain sawing and this seems to be all right although he has only done this off and on when fencing. With the hole borer he has only done this on three occasions and found that the vibration diminishes his grip strength quite markedly. He indicated that if he is fencing with his son he has no particular problem as his son can use the hole borer.
[30] When giving his opinion as to whether Mr Crothers was unable to fulfil the work requirements of a sheep/beef farmer due to his injury, Dr Turner noted:
My assessment reveals there was no contraindication to his undertaking
scrub cutting …
Clearly vibration can be an issue for him however the use of vibration gloves and judicious [use] of these tools and particularly gaining assistance from other people for example his son for these more difficult tasks, would be advisable. Nevertheless as has been reported by Mr Lowden on the whole he is able to undertake most of his farming duties.
[31] There is therefore some support for Mr McGurk’s position that the fact Mr Crothers’ son was still needed to do some aspects of the core tasks was common ground and implicitly part of the District Court’s factual findings.
[32] Analysed in this way, it can be argued the District Court Judge made a finding Mr Crothers’ son’s involvement was necessary. The District Court Decision at [29] incorporates the analysis of the s 103(2) test. The Judge posed the question of whether Mr Crothers was able to continue his farming business with reasonable adaptation and in that context referred to involvement of family members, as well as the two factors relied on by ACC, that is, working on steep terrain in fair weather and being more cautious when riding.
[33] In some ways, ACC’s position can be considered as supporting Mr McGurk’s submission. ACC says the reasonable adaptation test is the correct one and it envisages reorganisation of employees’ work tasks. ACC then says, on the facts as found by the Judge, that requirement did not enter the equation. All Mr Crothers had to do was change his riding style and confine work on steep terrain to good weather. If that were the case, however, there was very little, if any, adaptation required and arguably the Judge did not need to identify the reasonable adaptation test to reach his conclusion.
[34] The context of the Judge’s analysis is set out in the first paragraph under the heading “Discussion” as follows:
[24] The appellant’s capacity for pre-injury employment and his request for contribution to purchase of an ATV with power steering involved substantially the same question, namely whether the vehicle was an injury related need for him to engage fully in his farming work.
[35] That, it seems to me, may well have contributed to the situation now faced by the Court. Because the District Court Judge saw both issues as involving the same question, his Honour’s analysis was necessarily focused on the differences between
what Mr Crothers could do with an ATV with power steering and what he could do with an ATV without power steering. Given that, his Honour did not address the other work carried out by Mr Crothers’ son, which relates to fencing, use of a chain saw, and in particular the digging of bore holes.
[36] The Judge concluded Mr Crothers required only reasonable adaptation to obtain his pre-injury capacity. What this means in terms of Mr Crothers’ son’s involvement is not explicit. One possible inference is that the Judge included Mr Crothers’ employment of his son within the definition of reasonable adaptation. Another is that the Judge preferred a reading of the evidence which suggested Mr Crothers could undertake those tasks without his son’s help.
[37] The High Court was presented with arguments from ACC that Mr Crothers’ son was still employed not to relieve Mr Crothers’ incapacity but because of changes in the farm’s operations, and any incapacity was instead resolved by the purchase of the ATV. In that context the High Court considered the District Court Judge had properly considered the evidence and was entitled to conclude Mr Crothers’ son was not required to perform core tasks. The High Court interpreted the Judge as having concluded Mr Crothers could perform all his core farming tasks, albeit with a decreased (but still acceptable) margin of safety, again focusing on Mr Crothers’ capacity with or without the use of the ATV.
[38] I accept the appellant’s submission that there is some difficulty in the factual findings, as I say, probably occasioned by the way in which the District Court Judge approached the issues. The argument that the Judge considered the employment of Mr Crothers’ son was a reasonable adaptation is compelling. It is difficult to read the decision as saying it was the fact of the farm having diversified which explained the ongoing employment of Mr Crothers’ son rather than Mr Crothers’ injuries. Indeed the Judge made no mention of diversification and so cannot be considered to have taken it into account, much less relied on it.
[39] If the correct factual position is that Mr Crothers could not perform a core task without employing his son, in circumstances where he had no employees prior to his injury, then, on Williams J’s test, Mr Crothers was unable because of his
personal injury to engage in his prior employment as a farmer and his appeal should have succeeded.
Should leave be granted?
[40] In the context of s 67 of the Judicature Act 1908, the Court of Appeal has said:17
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.
[41] Leave to appeal is one constraint in the appellate process. An appeal in the context of accident compensation is even more constrained. Parliament has determined questions of fact are to be established by a specialist decision maker, with a general right of appeal to the District Court, and has limited appeal rights thereafter to questions of law only.
[42] Although there may well be errors occasioned by the way in which the decisions were made, these fall into the general error correction category. Such errors are intended to be corrected via the statutory process for review and appeals. They are an inappropriate reason, in and of themselves, to elevate the matter to the Court of Appeal.
[43] Moreover, it is difficult to ascertain a question of law, distinct from a question of fact, for which leave may be granted. Prima facie, the decision of the High Court did not purport to substitute findings of fact. The High Court interpreted the District Court’s factual findings and found its conclusion was one which was open to it. While I express some disquiet about the approach of the District Court conflating the two issues before it, that matter is not before me, and nor was it before Williams J. Where a court has determined a legal question, but the factual findings to which it is
to be applied are unclear, it may be that a cautious approach of remitting the matter
17 Waller v Hider [1998] 1 NZLR 412 (CA) at 413, cited with approval in the context of the arbitration in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [31].
to the tribunal of fact for determination is warranted. However, I take the view the High Court did not reach an ultimate conclusion on the facts which was clearly untenable, and thus the proper application of the law does not require a different answer.
[44] I therefore find there is no question of law arising from these circumstances for which an appeal on the second ground may be allowed.
The first proposed question of law: should a reasonable adaptation test be applied when assessing incapacity under s 103(2) of the Act?
[45] The applicant says:
The High Court was wrong to hold that a reasonable adaptation test can apply to the assessment of incapacity under s 103(2) of the Act. Incapacity relates to the ability of the claimant to carry out key tasks of the pre-injury employment.
[46] In the High Court, Williams J briefly set out the history of the case law pertaining to s 103(2). His Honour referred in particular to the decisions of Gibson v Accident Compensation Corp,18 Irving v Accident Compensation Corp,19 and Lamb v Accident Rehabilitation and Compensation Insurance Corp.20 The Judge then addressed the issue on appeal as follows:
[50] I am satisfied that the reasonable adaptation test applied by [the District Court Judge] to the self-employment context is the correct one. Both O’Connor and Delaney are essentially applications of that principle. Trent by contrast appears to have reverted to the employee test and even then is inconsistent with Brown J’s finding in Gibson. In my view Trent was wrongly decided.
…
[52] Just what amounts to reasonable adaptation will require a close factual inquiry. It will generally be reasonable to rearrange existing staff to cover work that the claimant is unable to do because of the injury. A multiple staff workplace creates that flexibility. But if a self-employed person is required, because of the injury to hire new staff or contractors to perform essential tasks of that employment, whether because the person has no staff or existing staff cannot reasonably be reassigned, then this additional cost will not be reasonable adaptation. Rather, it will be evidence of
18 Gibson v Accident Compensation Corp [2016] NZHC 1003, [2016] NZAR 587.
19 Irving v Accident Compensation Corp HC Whangarei AP53/01, 11 April 2003.
20 Lamb v Accident Rehabilitation and Compensation Insurance Corp DC Christchurch 74/98, 20
April 1998.
continuing incapacity. Similarly, although it is not a matter strictly at issue in this appeal, it must also follow that if a claimant is only able to perform a key task or tasks of his or her employment through the use of expensive equipment, then this too will not be considered reasonable adaptation. Rather, it is likely to qualify as the kind of “but for” vocational rehabilitation referred to in s 85(1)(b)(ii).
[47] As framed, the issue is whether the so-called “reasonable adaptation” test plays any part in s 103(2). In his written submissions, however, Mr McGurk focused on the issue of whether a self-employed claimant may be regarded as no longer incapacitated in terms of s 103(2) if key pre-injury tasks can be carried out by existing staff. In Mr McGurk’s submission, by framing the test for incapacity of a self-employed person in this way, the test has significantly been altered. Not only does it amount to a reversion to the “substantial” test, but also, in Mr McGurk’s submission, the consequence of the High Court Decision is that a self-employed person will be regarded as no longer incapacitated if key tasks are being undertaken by other people. In his submission, that interpretation is not open on the words of the subsection. The focus is on the incapacity of the claimant, not on the capacity or availability of other people to carry out the key tasks of the claimant’s pre-injury employment.
[48] In support of his submission that the issue raises a question of law capable of bona fide and serious argument, Mr McGurk discussed the difference between the present case and the other decisions referred to by the Judge, saying the Gibson, Irving and Lamb decisions all focused on the meaning of pre-injury employment, not on the meaning of incapacity. The cases concerned employees and whether they could still engage in the employment in which they were engaged when the personal injury occurred. The issue in those cases was not, in Mr McGurk’s submission, whether substituting people was relevant when determining the meaning of incapacity. It cannot be correct, he said, to substitute the claimant with another person when assessing the claimant’s incapacity.
[49] Mr McGurk went on to submit the concept of reasonable adaptation creates a dual test for incapacity depending upon whether a claimant is employed or self-employed and this is not envisaged by statute. He did, however, accept the logical extension of that argument would be to the detriment of Mr Crothers’ case.
[50] In Mr McGurk’s submission, the correct test under s 103(2) involves the identification of all key tasks which are part of the pre-injury employment. If a claimant can undertake every key task, he or she is no longer incapacitated. The analysis, he said, stops at the incapacity of the claimant and does not extend to consider whether other people can engage in that employment. He then identified what he considered to be the potential absurdities and inconsistencies a test based on reasonable adaptation would cause. For example, how would the fact an employee required more money to undertake additional tasks be dealt with? If the employee became ill, would it mean the claimant would again be rendered incapacitated? These examples were important, in his submission, because the test has potentially wide ramifications for both ACC and claimants.
[51] In Mr Laurenson’s submission, although Williams J said “it would generally be reasonable to rearrange existing staff to cover work that the claimant is unable to do because of the injury”, neither Judge held Mr Crothers had regained pre-injury capacity because his son could perform pre-injury tasks Mr Crothers was not able to perform. Mr Laurenson emphasised what he said was the District Court Judge’s conclusion Mr Crothers could perform all pre-injury tasks if he adjusted his riding style and rescheduled some work to avoid unsafe weather conditions. Williams J held that conclusion was open to the Judge.
[52] The question of law is therefore immaterial to the outcome of the claim, in Mr Laurenson’s submission. He said, even if the Court of Appeal were to decide the s 103(2) analysis does not extend to the ability of existing employees to carry out key tasks, the outcome for Mr Crothers would be the same. Under both the District Court and High Court Decisions, Mr Crothers would still have been considered to have regained pre-injury capacity in light of the factual findings he could perform all pre-injury tasks himself.
[53] Mr McGurk acknowledged the difficulty, but said it would then be appropriate to grant leave to appeal on the first question alone because of the public law nature of the appeal. In support of that he referred to the cases of Gordon-Smith
v R,21 and Hutchinson v A.22 The cases recognise that, while an appellate court will not as a general principle determine an appeal where there is no longer a live issue between the parties to be resolved, it retains a discretionary power to hear an appeal where there is an issue involving a public authority as to a question of law which will directly affect the rights and obligations of the parties.
[54] Gordon-Smith involved an application for leave to appeal against a judgment of the Court of Appeal which upheld as lawful the administrative practice of jury vetting by the police. Notably, both the applicants and the Crown agreed the issue was of general and public importance and therefore met the statutory requirements for grant of leave, despite the outcome of the appeal being of no material benefit to the appellant. The Supreme Court discussed the main reasons for the general policy, being the importance of the adversarial nature of the appellate process in the determination of appeals, the need for economy in the use of limited resources of the appellate courts, and the responsibility of the courts to show proper sensitivity to their role in the system of government. In general, advisory opinions are not appropriate. In relation to the value of an adversarial context, the Court identified the fact that having a stake in the outcome fosters full argument on the questions before the Court. The Court ultimately granted leave because of the importance and public law nature of the issue, and the likelihood that early determination would prevent the issue delaying future trials.
[55] Hutchison involved issues relating to discrimination against students with disabilities in the education sector and were of considerable public importance. However, notwithstanding that, the Court of Appeal noted the High Court had not made factual findings foundational to the proposed appeal, and the Human Rights Review Tribunal – the appropriate specialist body – was to hear the issue. In those circumstances, the general principle against hearing a moot appeal applied.
[56] Mr Laurenson referred to the decisions in Loktronic Industries Ltd v Diver,23
where the Supreme Court held, under s 13(2)(c) of the Supreme Court Act 2003, it
21 Gordon-Smith v R [2008] NZSC 56, [2009] NZLR 721.
22 Hutchinson v A [2015] NZCA 214, [2015] NZAR 1273.
23 Loktronic Industries Ltd v Diver [2012] NZSC 77 at [2]–[3]; and Loktronic Industries Ltd v
Diver [2012] NZSC 60 at [5].
will only be necessary in the interests of justice to hear a proposed appeal concerning a matter of general commercial significance if the matter relied on is likely to be material to the outcome of the case.
[57] Given my assessment of the second proposed question of law, any decision the Court of Appeal might make on the first would make little difference to Mr Crothers. While mootness is not an unassailable reason to refuse relief in whatever form sought, in the present case the fact there could be no benefit to Mr Crothers one way or the other points away from granting leave.
[58] In my assessment, although the correct interpretation of s 103(2) is a matter of general and public importance, the circumstances of this case do not provide the adversarial context necessary to determining that interpretation.
Result
[59] For the reasons given, leave to appeal to the Court of Appeal is refused in respect of both proposed questions of law.
Costs
[60] ACC has been successful in its opposition to this application. However, given the possible errors occasioned in the Courts below and the overall public importance of the issue argued, I am inclined to depart from the usual rule and allow costs to lie where they fall. However, if costs are sought, ACC is to file a memorandum within 21 days of this decision and any reply is required 14 days
thereafter. Costs will be dealt with on the papers.
Solicitors:
John Miller Law, Wellington for Applicant
Medico Law Limited, Auckland for Respondent
Thomas J
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