King v Accident Compensation Corporation - [2019] NZHC 1751

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-701

[2019] NZHC 1751

UNDER the Accident Compensation Act 2001

BETWEEN

MALCOLM JOHN KING

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 13 May 2019

Counsel:

T Mijatov for Applicant

S M Bisley and M R Evans for Respondent

Judgment:

24 July 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] Mr King has been a mechanic since about 2001. Since July 2009, he has operated in the Queenstown area through a company which he owns (Tech 2 U Limited). Mr King does not provide mechanic services through a garage but visits customers, providing mechanical services to them at their sites. Another unusual feature of Mr King’s work is that the services provided by him are limited to Toyota and Lexus vehicles.

[2] On 5 February 2012, Mr King injured his left shoulder in a mountain biking accident. As a result of the accident, he has limited ability to use his left arm at or above chest height, a function which was critical to his work as a mobile mechanic.

KING v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1751 [24 July 2019]

[3] Following the accident, Mr King promptly filed a claim with the Accident Compensation Corporation (ACC) and began receiving a weekly compensation entitlement. He returned to work on 7 August 2012 and the weekly entitlement ceased.

[4] In April 2015, Mr King contacted ACC regarding ongoing pain and weakness in his shoulder, and on 4 June 2015, Mr Andrew Swan operated on his shoulder. He began to receive weekly compensation entitlements again.

[5] In November 2015, ACC agreed to fund some of the cost of equipment for Mr King’s vehicle for the purpose of assisting him to carry out his mobile mechanic work.

[6] On 1 April 2016, another surgeon, Mr Craig Ball, carried out a second operation on Mr King’s left shoulder. Mr King subsequently received physiotherapy and occupational therapy designed to assist his return to work. On 4 November 2016, Mr Ball stated that Mr King would be ready to return to work in January 2017.

[7] On 22 December 2016, ACC agreed to fund Mr King’s purchase of an adaptor for a brake lathe for his mobile workshop.

[8] On 16 January 2017, Mr King completed a partial return to work and his weekly compensation was abated accordingly.

[9] By report dated 1 March 2017, Dr Martin Robb, a specialist in occupational medicine engaged by ACC, indicated that Mr King had asked him to mention to ACC that he felt he could cope much better with work tasks if he had a trailer with a mobile hoist.

[10] The report noted that Mr King said such trailers were available in the United States and would cost around US$70,000 but that he had been looking at the possibility of constructing his own trailer and attaching a mobile hoist to it.

[11] Dr Robb provided a second report dated 25 May 2017. This…

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: [2019] NZHC 1751
Decision Date: 24 July 2019

CaseChat Overview and Summary

Malcolm John King, a mobile mechanic, applied for judicial review of a decision by the Accident Compensation Corporation (ACC) to decline to fund a mobile hoist for his vehicle. He contended that the decision to decline funding was unlawful because it failed to take into account whether it was reasonably practicable to return him to his pre-injury employment, a matter which he submitted was a legislative pre-condition to the decision. The Court concluded that, in accordance with s 133(5) of the Accident Compensation Act 2001, the decision was not amenable to judicial review because it was a decision about which entitlements the Corporation would provide to a claimant. In this case, the decision not to provide vocational rehabilitation met the definition of a decision under s 6 of the Act. Vocational rehabilitation was a specified entitlement, and a claim for it was therefore a claim captured by s 48. Accordingly, ACC’s decision about Mr King’s claim for vocational rehabilitation was a decision which, under s 133(5) of the Act, was not amenable to judicial review.

Orders