Marsh v Accident Compensation Corporation - [2015] NZHC 3208

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-485 [2015] NZHC 3208

UNDER
s 162(3) of the Accident Compensation

Act 2001

IN THE MATTER OF

an application seeking special leave to appeal

BETWEEN

ALISTER JOHN MARSH Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 25 November 2015

Appearances:

Applicant in Person
H A Evans for Respondent

Judgment:

15 December 2015

JUDGMENT OF MANDER J

Introduction

[1] This is an application for special leave to appeal to the High Court on a question of law under s 162(3) of the Accident Compensation Act 2001 (the 2001
Act).1

[2] The appeal arises from a decision by a review officer in October 2005. The appellant appealed the decision, pursuant to s 149 of the 2001 Act. In a reserved
judgment of April 2012, Judge Barber dismissed the appeal.2 Mr Alister Marsh, the

1 The Accident Compensation Act 2001 was formerly called the Injury Prevention, Rehabilitation, and Compensation Act 2001.
2 Marsh v Accident Compensation Corporation [2012] NZACC 115 [2012 DC Appeal].

applicant, then made application to the District Court for leave to appeal to the High

Court. In a written decision of July 2015, Judge Powell declined to grant leave.3

[3] Mr Marsh has identified 25 issues he submitted are points of law arising from Judge Barber’s judgment, in respect of which he seeks special leave to appeal to this Court. They are substantively the same points raised before Judge Powell. With the exception of two issues, the points raised by Mr Marsh either do not constitute issues of law, or are irrelevant to, or relate to matters that do not arise from. Judge Barber’s decision. For the reasons set out in this judgment, the test for the grant of special leave is not established and the application is declined.

Background facts

[4] Mr Marsh lodged a claim with the Accident Compensation Corporation (ACC) in March 2000. As a result of an accident, he injured his right wrist. At the time, Mr Marsh was a self-employed architect. It was agreed that Mr Marsh was incapacitated and not able to return to his pre-accident occupation as an architect.

[5] In March the following year, an orthopaedic surgeon assessed Mr Marsh’s wrist as having healed “in an excellent position” and that he had regained a good range of motion. In July, an individual rehabilitation plan was agreed which involved Mr Marsh continuing as a self-employed architect. In December 2001, Mr Marsh’s case was outsourced for case management. In January 2002, an occupational medicine specialist noted Mr Marsh was managing around 45 hours of work per week, but that some tasks were causing some pain.

[6] In March 2002, ACC received medical advice that Mr Marsh had capacity to work in relation to his pre-injury occupation, as well as other types of employment, with restricted use of his right wrist. This resulted in Mr Marsh being advised in September 2002 that he was “vocationally independent”. In a review decision of November 2002, the reviewer,…

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: [2015] NZHC 3208
Decision Date: 15 December 2015

CaseChat Overview and Summary

In Marsh v Accident Compensation Corporation, the applicant, Mr Alister Marsh, sought special leave to appeal to the High Court under s 162(3) of the Accident Compensation Act 2001, against the District Court's decision to decline him leave to appeal. Mr Marsh's appeal was against the District Court's dismissal of his appeal of a review officer's decision to deny his claim for weekly compensation payments. The District Court had declined Mr Marsh's application for leave to appeal on the basis that the issues he raised were not arguable points of law. Mr Marsh's application for special leave to appeal to the High Court was also declined by Justice Mander. The Court found that the issues raised by Mr Marsh were either not points of law, or were not arguable points of law capable of serious and bona fide argument. The Court found that the District Court had correctly identified the issues of law and correctly determined them. The Court also found that Mr Marsh's complaints regarding access to documentation, the approach taken by Judge Beattie in his 2005 judgment, and the way in which assessments had been carried out and interpreted, were not arguable errors of law. The Court concluded that Mr Marsh's application for special leave to appeal should be dismissed.

Orders