Morgan v Accident Compensation Corporation - [2012] NZHC 1789

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2011-488-528 [2012] NZHC 1789

UNDER The Injury Prevention, Rehabilitation and
Compensation Act 2001

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

BETWEEN REGINALD MORGAN Appellant

ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 10 November 2011

Appearances: D Tuiqereqere for Respondent
J Robinson, Advocate for Appellant

Judgment: 20 July 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 July 2012 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Medico Law Limited, Auckland: dane@medicolaw.co.nz

Copy for: J Robinson, Whangarei: gamefishervila@gmail.com
R Morgan, c/- P O Box 4407, Kamo, Whangarei

MORGAN V ACCIDENT COMPENSATION CORPORATION HC WHA CIV-2011-488-528 [20 July 2012]

Introduction

[1] The Applicant, Mr Morgan, seeks special leave to appeal to the High Court from a decision of the Accident Compensation Appeal Authority (“the Authority”).1
The Respondent (“the Corporation”) opposes the application.

[2] I may grant leave only if the appeal raises a question of law or if the question involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision.2

[3] I note that the application for special leave was made marginally out of time, due to the ill health of the Applicant’s advocate, Mr Robinson. I allowed the extension of time necessary to make the application and I also allowed Mr Robinson to appear and make submissions on behalf of the Applicant when I heard the application.

Background

[4] In about 1975, the Applicant applied to the Corporation for earnings related compensation (“ERC”) under the Accident Compensation Act 1972 (“1972 Act”). The Applicant was a stock and station agent, and he suffered a serious injury in a motor vehicle accident. That accident had the effect of ending the Applicant’s career as a stock and station agent, and was an event which has affected the Applicant and his family very adversely over the years.

[5] The Corporation accepted the Applicant’s claim for ERC, determined the level of ERC to which it considered the Applicant was entitled and paid him accordingly.

[6] The period for which the Corporation paid compensation for the injury and for another injury in 1980 were the subject of later, successful applications for

1 Morgan v Accident Compensation Authority [2010] NZACA 10, 24 December 2010.
2 Accident Compensation Act 1982, s 111.

review. However, more than 30 years after the original decision, on 17 December

2007, the Applicant filed an application to review the Corporation’s decision on the level of ERC that he would be paid. The basis for the application was a claim that, in determining the level of ERC, the Corporation had failed to take into account various benefits which the Applicant’s employer had allowed him, namely the use of a vehicle, and payment of his telephone bill and an expense allowance.

[7]…

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: [2012] NZHC 1789
Decision Date: 20 July 2012

CaseChat Overview and Summary

In the case of Morgan v Accident Compensation Corporation, the High Court was called upon to determine whether special leave should be granted to the appellant, Reginald Morgan, to appeal the decision of the Accident Compensation Appeal Authority. The Authority had declined to grant an extension of time for Morgan to apply for a review of the Accident Compensation Corporation's determination of his earnings-related compensation, which was based on a serious injury he sustained in a motor vehicle accident in 1975. The key issue in the appeal was whether the court should address the question of whether the Corporation's destruction of relevant evidence constituted a breach of its statutory obligation to keep claims files, and if so, whether this created an evidential burden on the Corporation.

The Court examined the criteria for granting special leave, including the requirement that the appeal raise a question of law or be of general or public importance. The Court concluded that the proposed question of law was not squarely raised in the initial proceedings and was more of an afterthought. Furthermore, even if the Court were to address the question in Morgan's favour, it was unlikely to change the outcome regarding the extension of time. Additionally, the Court had reservations about whether the statutory obligation applied and whether there had been a breach, as there was insufficient evidence to establish that the original file existed at the relevant time or that it was destroyed within the statutory period.

Ultimately, the Court declined to grant special leave to appeal, finding that the proposed question of law was not sufficiently compelling to warrant an appeal. Costs were to lie where they fell.

Orders