Jones v Accident Compensation Corporation

[2013] NZHC 655

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-4145 [2013] NZHC 655

UNDER  the Accident Compensation Act 2001

IN THE MATTER OF     an application for special leave to appeal to the High Court pursuant to s 162 of the Act

BETWEEN  THOMAS JONES Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         27 September 2012

Appearances: C Jones as lay advocate for Appellant

D K Tuiqereqere for Respondent

Judgment:      28 March 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 March 2013 at 11.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Medico Law Limited, Auckland: [email protected]

Copy to:            T Jones, c/- C Jones, 18 Overton Road, Auckland 2025:  [email protected]

JONES V ACCIDENT COMPENSATION CORPORATION HC AK CIV-2012-404-4145 [28 March 2013]

[1]      The Applicant (“Mr Jones”) applies to this Court for special leave to appeal from a judgment of Judge Beattie in the District Court at Auckland, given on 3 July

2009.[1]      In  his  judgment,  Judge Beattie  refused  an  appeal  from  a  decision  of  a

[1] Jones v Accident Compensation Corporation DC Auckland Decision No 113/2009, 3 July 2009.

Reviewer engaged by the Accident Compensation Corporation (“Corporation”) dated

9 June 2008. The Judge upheld the Reviewer’s decision, subject to one matter which

is irrelevant to this application.

[2]      Leave to appeal lies only with the leave of the District Court or, failing that, with the special leave of this Court, and may only be granted on a question of law.[2]

[2] Accident Compensation Act 2001, s 162.

[3]      Mr Jones applied to the District Court for leave to appeal.   Judge Ongley declined that application in a judgment in June 2012.[3]   Judge Ongley determined the application on its merits.  In fact, and through no fault of Mr Jones, his application for leave was filed outside the permitted period and should have been dismissed for that reason.[4]   I would have been required to dismiss this application for special leave but for the fact that the Corporation has now waived Mr Jones’ lateness.

[3] Jones v Accident Compensation Corporation [2012] NZACC 213.

[4] Accident Compensation Act 2001, s 162(2).

[4]      I allowed Mr Jones’ son, Mr Craig Jones, to appear on the application for special leave.  Mr Craig Jones is familiar with Mr Jones’ claim and Mr Jones’ health does not permit him to appear.

[5]      Several grounds of appeal are advanced in Mr Jones’ application for special leave.  With respect to him, I have gained little assistance from his application or from his son’s submissions, which were wide ranging and not confined to the critical issues.

[6]      However, the general point I am required to consider is whether a question of

law arises from Judge Beattie’s decision.  Counsel for the Corporation submits that it

does not.

[7]      Prior to August 1992 Mr Jones was employed as a shopfitter.   In August

1992, whilst travelling to Rotorua for work he was injured in a motor vehicle accident.  Mr Jones suffered a back injury and was certified unfit for work until approximately mid-October 1992.  Mr Jones returned to work in mid-October 1992 until March 1994, at which time he was again certified as being unfit for work.  For all or most of this period Mr Jones was employed as a storeman.

[8]      Mr Jones was paid earnings related compensation for the six week period commencing August 1992 and from March 1994 for several years, when he became eligible to receive national superannuation.

[9]      The Corporation determined the amount of compensation due from March

1994 on the basis of Mr Jones’ earnings in the 12 months prior to March 1994. Mr Jones’ case has been that in fact the Corporation was required to calculate the compensation on the basis of his earnings for the 12 months prior to August 1992. The point is important because Mr Jones’ earnings prior to August 1992 exceeded his later earnings.

Issues

[10]     As I understand it from counsel and from the earlier decisions in this matter, the critical issue before the Reviewer and Judge Beattie was whether Mr Jones was “incapacitated” within the meaning of s 37 of the Accident Rehabilitation and Compensation Insurance Act 1992 (“Act”) from October 1992 to March 1994.

[11]     The relevant part of s 37 reads as follows:

37       Test of incapacity

For the purposes of this Part of this Act, whether or not a person to whom this Act applies is incapacitated shall be determined by whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred ...

[12]   Both the Reviewer and the Judge determined that Mr Jones was not incapacitated within the relevant period.  I am concerned only with the Judge’s decision.

[13]     With respect to the Judge, the evidence on which he found as a fact that

Mr Jones was not incapacitated is not apparent to me on the face of the judgment.

[14]     The Judge said that the evidence was to the effect that on his return to work in mid-October 1992, Mr Jones undertook work as a shopfitter and only became a storeman subsequent to that.  This is important evidence because it would support a finding that Mr Jones was not incapacitated for the employment he undertook prior to the personal injury.   However, the evidence on which the Judge relied and to which he was referring is not apparent from the judgment.  Subsequent to hearing the appeal, I made enquires of the parties and asked them to refer me to the relevant evidence.   I am grateful for their responses but they do not take the matter any further.

[15]     I also cannot reconcile some findings the Judge made with the evidence in the common bundle filed on the application for leave.  For instance, in [18] of his decision the Judge said that Mr Jones’ doctor’s notes showed that Mr Jones consulted him  regarding  the  back  injury on  five  occasions  between  19 October  1992  and

11 March 1994.  However, in response to the Corporation’s request for information,

the doctor advised the Corporation on 23 March 1994 as follows:

The current problems are directly related to the [motor vehicle accident] of

24/8/92.  I had known [Mr Jones] for 2 1/2 yrs before this and he never mentioned back pain.  I have seen him 16 times since that accident, and on 9

of those times the major focus of his consultation has been on back pain.

[16]     Thirdly, a further point arises from [28] of the Judge’s decision.   In that

paragraph the Judge said as follows:

[28]      Furthermore, in addition to the factual situation which pertained, there is in addition the legal situation which has been established by a line of decisions of this Court to the effect that where a person continues on in his employment, despite the fact of suffering from some injury which subsequently  is  accepted  as  incapacitating,  the  fact  of  the  claimant “soldiering on” means that as a matter of law the claimant cannot be considered incapacitated [during the “soldiering on” period].

[17]     The authority referred to for this proposition is a case referred to as Vincent.[5]

[5] Vincent v Accident Compensation Corporation DC Wellington Decision No 79/2006, 4 April 2006.

[18]     The Judge’s summary of that authority and others which he clearly had in mind may be accurate.  Whether the statement is correct as a proposition of law is a different matter and one which Mr Jones has put in issue.

Result

[19]     To summarise I am not satisfied that the Judge’s critical findings of fact are supported by the evidence before the Court and in those circumstances a question of law arises.[6]  A question also arises as to the statement of principle the Judge made as referred to in [16] above.  I grant leave to appeal on those two matters.  Costs on the application are reserved.

[6] Ogilvie & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641 at 646 (CA); and Auckland City

Council v Wotherspoon [1990] 1 NZLR 76 at 85.

..................................................................

M Peters J