McKeefry v Accident Compensation Corporation - [2019] NZHC 612

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-775

[2019] NZHC 612

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an application under section 162 of the Act to appeal to the High Court on a question of law

BETWEEN

JAMES MCKEEFRY

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 21 March 2019

Appearances:

L J Newman and T W R Lynskey for the Appellant P A McBride and S J Hack for the Respondent

Judgment:

28 March 2019

JUDGMENT OF COOKE J

[1] The appellant appeals from a decision of the District Court dismissing an appeal from a determination made by the Accident Compensation Corporation (the Corporation) relating to the weekly compensation he is entitled to under the provisions of the Accident Compensation Act 2001 (the Act).1 Under s 162 of the Act there is an appeal to this Court on a question of law with leave. Leave was granted by the District Court in the present case.2

1 McKeefry v Accident Compensation Corporation [2018] NZACC 45.
2 McKeefry v Accident Compensation Corporation [2018] NZACC 160.

MCKEEFRY v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 612 [28 March 2019]

The facts

[2] Prior to his accident Mr Keefry had been employed as a builder with K Sullivan Builders in Christchurch. His employment ended on Thursday 18 December 2014, the month before his accident. Mr Keefry then looked for other work and sought employment with a glazier in Wellington trading under the name of the Glass Shoppe. Mr Dean Tredrea was the Managing Director of the Glass Shoppe. On Monday 12 January they discussed Mr Keefry joining the Glass Shoppe on a glazing apprenticeship. Mr Keefry was taken on on a trial basis and worked at that business for six hours that same day, and then worked for a full eight hours on the following day. At the conclusion Mr Tredrea offered him full time employment commencing on Monday 26 January and agreed to pay Mr Keefry for the two days he had already worked. The full-time position did not commence earlier because Mr Tredrea was going away for the following two weeks, until 26 January.

[3] On Saturday 24 January, the weekend before he was due to start this work, Mr Keefry was involved in a motor vehicle accident and sustained very serious injuries. The nature of his injuries, and the incapacitation that has resulted, are not described in the decision under appeal or the earlier decision of the Corporation’s review officer. I was advised in his submissions to this Court that he is now a C4 AIS A tetraplegic as a result of the accident. I am not in a position to make any factual findings about his condition, but I proceed on the basis that he has suffered permanent disability. He was obviously not able to take up his employment with the Glass Shoppe.

[4] The Corporation has accepted that he is entitled to receive weekly compensation for…

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 612
Decision Date: 28 March 2019

CaseChat Overview and Summary

The appeal is by James McKeefry against the Accident Compensation Corporation (the Corporation) relating to the weekly compensation he is entitled to receive under the Accident Compensation Act 2001 (the Act). Mr McKeefry contends that he should receive an uplift to his weekly compensation so that it meets the level of the minimum wage as is contemplated by a particular provision in the Act. Secondly, he contends that his weekly compensation should have been calculated on the basis of his anticipated employment with the Glass Shoppe rather than his past employment. The level of compensation to which the Corporation accepts he is entitled gives him $354.14 per week. If either of the alternative arguments is accepted it would entitle him to be paid $504 per week.

The Court addressed the interpretive approach, noting that the question for the Court is the proper interpretation of the relevant statutory provisions. The Court then proceeded to address the weekly compensation scheme, explaining the starting point for compensation, the complications of calculation, and the adjustments contemplated by particular provisions. The Court then addressed the two arguments advanced by the appellant. Firstly, the Court considered whether the appellant qualified for the uplift contemplated under cl 42. The Court found that the appellant did not qualify for the uplift as he had not worked an average of 30 hours per week in the four weeks immediately before his incapacity commenced. Secondly, the Court considered whether the appellant's entitlement should have been calculated on the basis of permanent employment under cls 33 and 34 rather than non-permanent employment under cls 35 and 36. The Court found that the Act does not appear to have been applied as required and that the critical question required to be addressed for Mr McKeefry's case had not been considered by either the Corporation or the District Court. The Court allowed the appeal and remitted the matter to the Corporation for reconsideration.

The Court remitted the matter to the Corporation for reconsideration of the application of cls 33 and 34. The appellant is entitled to costs. The Court reserved the determination of costs.

Orders