Gaskin v Accident Compensation Corporation - [2020] NZCA 147

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA538/2019
[2020] NZCA 147

BETWEEN	JANET GASKIN Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:	Brown and Gilbert JJ
Counsel:	A C Beck for Applicant F L Becroft for Respondent
Judgment: (On the papers)	6 May 2020 at 11.30 am

JUDGMENT OF THE COURT

The application for special leave to appeal is granted in respect of the following question of law:

Did the High Court Judge err in interpreting s 86(2) of the Accident Compensation Act 2001 as permitting a contemporaneous rather than a sequential consideration of the matters in s 86(2)(a) and (b)?

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

The applicant (Ms Gaskin) wishes to appeal from a judgment of the High Court dismissing an appeal from the District Court on two questions of law.[1] Having been declined leave to appeal by the High Court, Ms Gaskin now applies under s 163 of the Accident Compensation Act 2001 (the Act) for special leave to appeal on questions of law. The respondent opposes the application.

Background

[1]Gaskin v Accident Compensation Corporation [2019] NZHC 1530.

In August 2013 Ms Gaskin injured her back while stacking goods on supermarket shelves in the course of her employment. Cover was granted by the respondent (ACC) for a work-related injury and Ms Gaskin received earnings related compensation while unable to continue with her work.
Between June and October 2015 Aon Work, a contracted accredited provider of ACC services, undertook a vocational independence assessment of Ms Gaskin. It concluded that she was vocationally independent with the consequence that her weekly compensation would cease three months from that date.
Ms Gaskin unsuccessfully sought a review of that decision. Her appeal against the reviewer’s decision was dismissed in a judgment of the District Court on 13 June 2017.[2] Her application to the District Court for leave to appeal to the High Court was declined.
[2]Gaskin v Accident Compensation Corporation [2017] NZACC 63.
However on her application to the High Court for special leave to appeal from the District Court decision Cull J granted leave to appeal in the following terms:[3]
[50] I am granting Ms Gaskin special leave to appeal. I consider there are two questions of law that this Court should address, namely:
(a) Did the Judge err in failing to take into account whether the statutory threshold test under s 110 of the Act had been met, before Ms Gaskin was referred for a vocational independence assessment?
(b) Did the Judge err in finding ACC complied with the legislative provisions on vocational rehabilitation for Ms Gaskin, in accordance with the Act and the applicable law?

The judgment of Dobson J on those two questions is the subject of the current application for special leave to appeal to this Court.

Questions of law

[3]Gaskin v Accident Compensation Corporation [2018] NZHC 3190.

Section 163 of the Act relevantly provides:
(1) A party to an appeal before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZCA 147
Decision Date: 6 May 2020 at 11.30 am

CaseChat Overview and Summary

In Gaskin v Accident Compensation Corporation, the applicant sought special leave to appeal from a judgment of the High Court which dismissed an appeal from the District Court. The applicant contended that the High Court had erred in its interpretation of sections 110 and 86 of the Accident Compensation Act 2001, as well as in failing to entertain a third question of law. The Court of Appeal granted the application for special leave to appeal on the question of whether the High Court Judge erred in interpreting s 86(2) of the Act as permitting a contemporaneous rather than a sequential consideration of the matters in s 86(2)(a) and (b). The Court considered that the application raised a reasonably arguable question of law concerning the interpretation of s 86(2) and that it was an issue of general significance, of sufficient importance to outweigh the cost and delay of a further appeal. The Court of Appeal did not find any error of law in the High Court Judge's consideration of s 110 of the Act. The Court found that the High Court Judge's detailed analysis on the mixed question of fact and law did not constitute an error of law. The Court also did not find any reasonably arguable error of law in the High Court Judge's approach to the third question of law. The Court held that the High Court Judge was not obliged to hear argument on a point not included in the leave granted by the High Court.

The final order of the Court of Appeal was that the application for special leave to appeal was granted in respect of the question of law concerning the interpretation of s 86(2) of the Accident Compensation Act 2001.

Orders