Howard v Accident Compensation Corporation - [2024] NZHC 699

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000126

[2024] NZHC 699

UNDER The Accident Compensation Act 2001 (the Act)

IN THE MATTER OF

An application for special leave to appeal – s 163(3)

BETWEEN

MAREE EILEEN HOWARD

Applicant

AND

ACCIDENT COMPENSATION CORPORATION (ACC)

Respondent

Hearing: On the Papers

Appearances:

Applicant self-represented P McBride for Respondent

Judgment:

27 March 2024

JUDGMENT OF CULL J

[Costs]

Introduction

[1] In a judgment dated 5 July 2023 (“the leave judgment”), I dismissed Ms Howard’s application for leave to appeal a District Court decision and granted leave to the parties to file memoranda on costs.1 The parties have each filed memoranda accordingly.

1 Howard v Accident Compensation Corporation [2023] NZHC 1734.
HOWARD v ACCIDENT COMPENSATION CORPORATION (ACC) [Costs] [2024] NZHC 699 [27 March 2024]

[2] The Accident Compensation Corporation (“ACC”) seeks costs against Ms Howard on a 2B basis.

Background

[3]I canvassed the background in the leave judgment, which I reproduce here:2

[3] Ms Howard suffered two ACC-covered spinal injuries, the first in 2006, and the second in 2007. She worked for New Zealand Post at the time, who was an accredited employer and whose work-accident claims were managed by Care Advantage.

[4] On 27 May 2010, Ms Howard committed to and signed an Individual Rehabilitation Plan (IRP). Care Advantage sought medical advice about vocational rehabilitation for Ms Howard, and referred her to Dr Courtney Kenny, an occupational physician, for an assessment. At the appointment, Ms Howard and her husband questioned Dr Kenny’s suitability to assess her and because of their objections, agreed not to conduct the assessment.

[5] On 11 November 2010, Care Advantage wrote to Ms Howard recording what occurred. Care Advantage noted that the appointment had been arranged in accordance with s 72 of the [Accident Compensation Act 2001]. Section 72 provides that a claimant who receives any entitlement must, when reasonably required to do so by ACC, undergo assessment by a registered health professional specified by ACC, at ACC’s expense.

[6] In its letter, Care Advantage advised that Ms Howard had been provided with information about the consequences of not attending or not completing the assessment on several occasions. Accordingly, Care Advantage made the decision under s 117 to suspend Ms Howard’s ACC entitlements. Section 117 allows ACC to decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to: comply with any requirement of the Act; or agree to, or comply with, an individual rehabilitation plan.

[7] Care advantage’s letter set out Ms Howard’s options for internal review through her employer, and her rights for formal review.

[8] Ms Howard unsuccessfully applied for a review, and then appealed to the District Court. By judgment dated 29 June 2012, Judge Ongley dismissed the appeal on the basis the decision to suspend Ms Howard’s entitlement was correct. Ms Howard unsuccessfully appealed Judge Ongley’s decision to the High Court, Court of Appeal, and the Supreme…

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: [2024] NZHC 699
Decision Date: 27 March 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Howard v Accident Compensation Corporation (ACC) [2024] NZHC 699 involves Maree Eileen Howard, who sought special leave to appeal a decision made by the District Court. Howard had previously suffered two spinal injuries covered by ACC and had her entitlements suspended by ACC in 2010, a decision that was upheld through various levels of appeal. Following a settlement agreement in 2021, Howard sought further compensation and appealed the dismissal of her review application, which was also dismissed by the District Court. Howard's application for leave to appeal this decision to the High Court was denied, leading to a subsequent application for costs by ACC against Howard.

The legal issues in this case revolve around the determination of whether the costs awarded should follow the unsuccessful party, Ms. Howard, under the prevailing rules and principles of costs in New Zealand, and whether there are any exceptional circumstances warranting a reduction or refusal of such costs.

The Court found that the proceedings were not of genuine public interest as they were brought for Ms. Howard's personal gain and did not have general importance beyond her interests. The Court also determined that Ms. Howard did not act reasonably in these proceedings, as she had engaged in an abuse of process by pursuing unsuccessful appeals after receiving an ex gratia payment in full and final settlement of her claims. Additionally, the Court concluded that financial hardship alone is not a sufficient reason to refuse or reduce a costs award, especially when the case lacks merit and the unsuccessful litigant has not provided verified evidence of their financial position.

Consequently, the Court ordered that Ms. Howard pay ACC’s costs and disbursements in the sum of $7,041, in accordance with the schedule provided by ACC's legal representatives. This decision adheres to the principle that costs should follow the event and are awarded on a category 2B basis, reflecting the complexity and nature of the proceedings.

Orders