Gibson v Accident Compensation Corporation - [2016] NZHC 1003

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-970 [2016] NZHC 1003

IN THE MATTER
of an appeal under s 162 of the Accident

Compensation Act 2001

BETWEEN

WILLIAM GIBSON Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 13 April 2016

Counsel:

A C Beck for Appellant
H A Evans for Respondent

Judgment:

17 May 2016

JUDGMENT OF BROWN J

Introduction

[1] Although the appellant was injured at his workplace in October 2005, until his surgery on 29 November 2006 he continued to work there but did 10 hours less overtime each week. The respondent ruled that the appellant had no entitlement to weekly compensation for the period 10 October 2005 to 29 November 2006 on the grounds that during that period the appellant was not incapacitated, within the meaning of the Accident Compensation Act 2001 (the Act), as a consequence of his covered injury condition.

[2] An appeal against that decision was declined in the judgment of

Judge M J Beattie dated 20 August 2013 in which the Judge held that the respondent

GIBSON v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1003 [17 May 2016]

was correct to determine that the appellant was not incapacitated during the relevant period.1

[3] On 19 October 2015 Judge G M Harrison granted leave to appeal to the High

Court on what he described as a “neat” question of law:2

Does the interpretation of the word “employment” in s 103(2) of the Act include the total time (including overtime) being worked by the claimant at the time he suffered his personal injury?

Background

[4] The factual background was recorded in the decision of Judge Beattie at [3]:

·In November 2003 the appellant, then aged 55 years of age, commenced employment as a mechanical engineer at Hillside Workshops for TOLL NZ.

·As stated at the review hearing his job was to build the end walls of railway carriages and this involved demolishing the existing end walls and then fabricating new end walls out of steel and then welding them into place.

·The appellant was one of a team of 14 persons engaged in this particular work.

·It was the evidence of the appellant that he and his fellow employees each worked a total of 60 hours per week, that period including
20 hours per week overtime, and which was said to be required because of the pressure on the employer to deliver the re-fabricated
carriages as quickly as possible.

·On 15 September 2005, the appellant began to experience pain in his shoulders following the lifting of a gas bottle containing carbon dioxide, and by 10 October 2005 that pain had not diminished, and it is the case that the appellant reduced his overtime work from
20 hours per week to 10 hours per week.

·The appellant continued in his employment working 50 hours per week until 29 November 2006 when he underwent surgery at Dunedin Hospital for his shoulder injury conditions.

·It is the case that the appellant had been waiting some time to…

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: [2016] NZHC 1003
Decision Date: 17 May 2016

CaseChat Overview and Summary

The appellant in this case, William Gibson, sought weekly compensation from the Accident Compensation Corporation for the period between 10 October 2005 and 29 November 2006, following a workplace injury. The Corporation ruled that Gibson had no entitlement to compensation for that period, finding that he was not incapacitated within the meaning of the Accident Compensation Act 2001. Gibson appealed this decision, and leave to appeal was granted by Judge G M Harrison, who identified the “neat” question of law as whether the interpretation of the word “employment” in s 103(2) of the Act includes the total time, including overtime, being worked by the claimant at the time he suffered his personal injury.

The appeal focused on the interpretation of the word “employment” in s 103(2) of the Act. The appellant argued that “employment” should be interpreted broadly to include all work carried out to earn income, and not limited to specific obligations. The Corporation, on the other hand, submitted that the question depends on the specific facts of each case and a case-by-case analysis is required.

The Court considered the definition of “employment” in the Act, which refers to work engaged in for the purposes of pecuniary gain or profit. The Court also referred to the definition of “earnings as an employee” and the provisions for the payment of first week compensation and weekly compensation, which include overtime earnings. The Court concluded that the inclusion of overtime earnings within “employment” is consistent with the purpose of the Act, which is to ensure that claimants receive fair compensation for loss from injury. The Court further noted that the legislative history did not signal a substantive change in the meaning of “employment”, and therefore s 103(2) should be construed to have the same meaning as the former s 85(2).

The appeal was allowed, and the Court held that the interpretation of “employment” in s 103(2) of the Act includes the total time, including overtime, being worked by the claimant at the time he suffered his personal injury. This decision does not, however, purport to resolve any outstanding factual questions, nor does it address the issue whether the appellant was “unable … to engage in” the employment.

Orders