Murray v Accident Compensation Corporation - [2013] NZHC 2967

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-0510
CIV 2013-485-2131
CIV 2013-485-2162
CIV 2013-485-2164
CIV 2013-485-2165

CIV 2013-485-2166 [2013] NZHC 2967

BETWEEN VALERIE MURRAY, HANS KOGLER, RW, RN, SA, and CORAL WAITERE Applicants

ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 3 October 2013

Counsel: J Miller with K Lau for Applicants
L Hansen with J Roberts for Respondent

Judgment: 11 November 2013

JUDGMENT OF THE HON JUSTICE KÓS (Special leave to appeal)

[1] The six applicants for leave to appeal have all been denied weekly earnings- related compensation under s 100(1)(a) of the Accident Compensation Act 2001.1
All were in employment at the time of incapacity. But none were in employment at the time of injury. Three were children at the time of injury (Ms Murray, Mr Kogler and RW). They are eligible for the lesser level of weekly compensation for loss of potential earnings under s 100(1)(d). They say they should be eligible for the higher level under s 100(1)(a). The other three applicants, RN, Ms Waitere and SA, have
been denied weekly compensation altogether.

1 Herein “the Act”.

MURRAY, KOGLER, RW, RN, SA, and WAITERE v ACCIDENT COMPENSATION CORPORATION [2013] NZHC 2967 [11 November 2013]

[2] The applicants seek to argue that the decision of Gendall J in Accident Compensation Corporation v Vandy2 is wrong. Alternatively, that it may be distinguished. Vandy held that to be eligible for weekly compensation under s 100(1)(a) of the Act, a person had to be in employment both at the time of injury and immediately before incapacity set in. It was recognised that this interpretation could produce unfairness. Gendall J said:3

It is of course the case that the legislative policy is not to be undermined by an ungenerous or niggardly approach and a broad, rather than restrictive, interpretation is necessary. But where, as here, the meaning of the statutory provisions could be interpreted only in one direction, despite understandable notions of what might be “fair” in an individual case, the remedy if there is to be one has to be provided by Parliament.

[3] As Mr Miller (who appears for the applicants) submits, the main interpretation issue is whether it is correct that if an injured person is not an earner at the time of injury, then no weekly earnings-related compensation can be paid if she or he has to give up work later because of that injury.

Special leave

[4] I will summarise the factual circumstances of each of the six cases later in this judgment. But in each case the District Court held that Vandy applied and denied the applicants weekly compensation under s 100(1)(a). Leave to appeal was sought in the District Court. It was denied. This is an application for special leave under s 162 of the Act.

[5] The proper test for special leave was set out by Dobson J in Ellwood v ACC:4

An applicant for special leave is required to establish that there is a question of law that is capable…

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: [2013] NZHC 2967
Decision Date: 11 November 2013

CaseChat Overview and Summary

The applicants, Valerie Murray, Hans Kogler, RW, RN, SA, and Coral Waitere, sought leave to appeal against the decision of the Accident Compensation Corporation (ACC) denying them weekly earnings-related compensation under s 100(1)(a) of the Accident Compensation Act 2001. The applicants argued that they were in employment at the time of incapacity but not at the time of injury, and thus should be eligible for the higher level of weekly compensation for loss of earnings. The court had to determine whether the statutory interpretation in Vandy, which held that a person had to be in employment at both the time of injury and immediately before incapacity set in to be eligible for weekly compensation, was correct. The court found that the statutory words were clear and drew clear lines of delineation, thus the applicants could not be eligible for the higher level of weekly compensation. The court also found that the other questions of law advanced by the applicants were not capable of bona fide and serious argument, and dismissed the application for special leave. The outcomes under the present Act were unquestionably anomalous, but the meaning and effect of the statutory words in issue was clear. Costs should lie where they fall.

Orders