Marsh v Accident Compensation Corporation - [2018] NZHC 2545

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000014 [2018] NZHC 2545

BETWEEN
ALISTER JOHN MARSH

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 24 July 2018

Appearances:

Applicant in person
H A Evans and A F Bradford for Respondent

Judgment:

28 September 2018

JUDGMENT OF DUNNINGHAM J

[1] Mr Marsh has filed an application for special leave to appeal nine decisions made by Judge Powell on appeals brought by Mr Marsh against decisions of the Accident Compensation Corporation (ACC).1

[2] Special leave is sought under s 162(4) of the Accident Compensation Act 2001 (the 2001 Act) because Mr Marsh’s applications for leave to appeal from the District Court under s 162(2) of the Act were declined by Judge Powell in a sequence of decisions issued on 16 December 2016.

1 Initially he sought leave to appeal 10 decisions but in his submissions he advises he has withdrawn the application for leave to appeal Marsh v Accident Compensation Corporation [2016] NZACC 17.

MARSH v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2545 [28 September 2018]

Background

[3] Mr Marsh’s dealings with ACC began in March 2000 when, as a result of an accident, he injured his right wrist. At the time, Mr Marsh was a self-employed architect. Initially, it was agreed that Mr Marsh’s injury incapacitated him and he was unable to work in that occupation.

[4] However, in March the following year, an orthopaedic surgeon assessed Mr Marsh’s wrist as having healed “in an excellent position” and he had regained a good range of motion. In July 2001 an individual rehabilitation plan was developed with Mr Marsh, to assist him to continue his employment as a self-employed architect.

[5] Rehabilitation progressed and, in March 2002, ACC received medical advice that Mr Marsh was able to return to his pre-injury occupation, albeit with restricted use of his right wrist. By September 2002, he was advised that he was “vocationally independent”. In a review decision dated 17 December 2002, the reviewer concluded that Mr Marsh had capacity to work in two job options and that decision was confirmed on appeal by Judge Beattie in May 2005.2 Judge Beattie also held that the assessment of Mr Marsh was undertaken when the 2001 Act was in force and that Act applied, not the Accident Insurance Act 1998 (the 1998 Act).

[6] Without rehearsing the subsequent history of Mr Marsh’s dealings with ACC in detail, there followed a series of vocational and occupational assessments by various medical practitioners which confirmed that Mr Marsh was vocationally independent and therefore not entitled to payment of weekly compensation. Mr Marsh did not agree with those decisions and has exhaustively challenged them.

[7] The only aspect of this background that I need to highlight for the purpose of this decision is that Mr Marsh considers that in a review decision dated 23 June 2003, Mr Walker, the reviewer, held the 1998 Act applied to Mr Marsh’s circumstances (the Walker review decision).3 Mr…

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.

Keep reading for free

Create a free CaseChat account to read Marsh v Accident Compensation Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NZHC 2545
Decision Date: 28 September 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Alister Marsh applied for special leave to appeal nine decisions made by Judge Powell on appeals brought by Mr Marsh against decisions of the Accident Compensation Corporation (ACC). Mr Marsh’s claims centred on his assertion that the Accident Insurance Act 1998 (the 1998 Act) applied to his injury and that he was therefore entitled to a deemed decision under that Act. Mr Marsh’s applications for leave to appeal from the District Court were declined by Judge Powell in a series of decisions issued on 16 December 2016. Mr Marsh sought special leave to appeal under s 162(4) of the Accident Compensation Act 2001 (the 2001 Act) because his applications for leave to appeal from the District Court under s 162(2) of the Act were declined. The court found that the issue of whether the 1998 Act or the 2001 Act applied to Mr Marsh’s injury had been conclusively determined against him. The court also found that Mr Marsh’s voluminous submissions did not raise any arguable questions of law, let alone one which would warrant granting special leave to appeal. The court declined the application for special leave to appeal.

Orders