N v Accident Compensation Corporation

[2022] NZHC 1977

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-871

[2022] NZHC 1977

BETWEEN

N

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	10 August 2022
Appearances:	B Hinchcliff for Applicant F Becroft for Respondent
Judgment:	11 August 2022

JUDGMENT OF LANG J

[on application for special leave to appeal]

This judgment was delivered by me on 11 August 2022 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

ACC and Employment Law, Auckland Medico Law Ltd, Auckland

N v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 1977 [11 August 2022]

[1]    In this proceeding N seeks special leave to appeal against one aspect of a decision delivered by Judge D Henare in the District Court on 20 January 2022.1 In that decision the Judge dismissed N’s appeals against three decisions made by reviewers appointed by the Accident Compensation Corporation (the Corporation). These related to N’s entitlements under the Accident Compensation Act 2001 (the Act) arising out of two injuries she says she suffered by accident.

[2]    N requires special leave to appeal because Judge P Spiller declined N leave to appeal against Judge Henare’s decision in a decision delivered on 18 May 2022.2

Background

[3]    The issues considered in the District Court flowed from two incidents that occurred in January and February 2019. On 13 January 2019, N fell over as she was getting up off a bench whilst she was out walking. I will refer to this as the first fall. N fell approximately one and a half metres onto a walkway, landing on her right hip. She immediately felt pain in her hip and was unable to get up without the assistance of an associate, who assisted her to her vehicle. N did not seek treatment for this injury. She believed she had suffered a sprain or contusion that would heal without medical intervention.

[4]    Approximately five weeks later, on 20 February 2019, N slipped on a wet surface at her home. She again fell onto her right hip and immediately suffered pain. I will refer to this as the second fall. Once again she did not seek medical treatment.

[5]    Subsequently, however, N consulted several medical practitioners regarding ongoing pain to her hip. This initiated a series of events that have ultimately led to the present application. For present purposes it is only necessary to describe these in the briefest of terms.

[6]    N originally applied for cover under the Act on the basis that the pain she was suffering came from an injury caused by the second fall. The initial claim was in relation to a contusion or bruise to her right hip. An MRI scan subsequently showed

1      N v Accident Compensation Corporation [2022] NZACC 008.

2      N v Accident Compensation Corporation [2022] NZACC 93.

that she had suffered a tear to the labrum of her right hip. The labrum is a cartilage around the rim of the hip socket. At this point N lodged a further claim for cover for the labrum tear, which she maintained was caused by the second fall. By this stage the Corporation had accepted her first claim for cover in relation to a contusion, or bruise, she had suffered to her hip in the second fall. She began to receive earnings- related compensation because she could not work due to this injury.

[7]    The Corporation subsequently declined N’s second claim for cover in relation to the labrum tear caused by the second fall. This is because an issue had arisen as to whether the labral tear had been caused by the second fall or whether it had occurred through natural degeneration.

[8]    On the basis of specialist advice, N filed a further claim which sought to rely on the first fall as having caused the labral tear. The Corporation failed to process N’s new claim relating to the labral tear within three months as required by the Act. It therefore wrote to her on 26 July 2019 advising that it had accepted her claim for cover in relation to this injury.

[9]    On 15 August 2019 the Corporation wrote to N advising her that it had reconsidered its decision to accept her claim. The Corporation said that it had received new information that suggested the tear was not caused by an accident. Another potential cause of the tear, in addition to natural degeneration, was repetitive physical activity undertaken as part of N’s occupation. If either of these mechanisms had caused the tear N would not be eligible for cover under the Act. The Corporation therefore revoked its earlier decision to grant her cover for the labral tear.

[10]   On the same date the Corporation wrote to N advising her that it had also decided to cease paying her earnings-related compensation in relation to the contusion caused by the second fall.   It said that payments of compensation would cease on   29 August 2019.

[11]   N filed applications to review both decisions. The reviewer appointed by the Corporation upheld the Corporation’s decision that the labral tear was not subject to cover under the Act because it was not caused by either of the two falls. The reviewer

also concluded the Corporation was entitled to suspend payments that related to the contusion. Judge Henare upheld both these decisions and N does not challenge those aspects of her decision.

The only remaining issue

[12]   The only  issue raised by the proposed appeal flows from the  letter dated    15 August 2019 in which the Corporation advised N that it would be suspending weekly compensation payments relating to the contusion injury. N filed an application for review of this decision on the basis that it was not reasonable for the Corporation to give two weeks notice of its intention to cease making payments for the contusion injury.

[13]   It is common ground that the Corporation did not expressly allocate a date for the hearing of this application within three months after receiving it. This occurred because the Corporation erroneously regarded N’s challenge to the notice period as duplicating her application for review of the decision to suspend entitlements relating to the contusion.

[14]   N contends the omission to expressly allocate a hearing date for the third application within three months engaged s 146 of the Act, which provides:

146     Deemed review decisions

(1)The reviewer is deemed to have made a decision on the review in favour of the applicant if—

(a)the date for the hearing has not been set within 3 months after the review application is received by the Corporation; and

(b)the applicant did not cause, or contribute to, the delay.

(2)The date of the deemed decision is 3 months after the review application is received.

[15]   The reviewer appointed by the Corporation considered both the argument based on deemed review and N’s argument regarding the reasonableness of the notice period. It rejected the former and concluded that two weeks notice was reasonable in the circumstances given the nature of the injury and the time that had elapsed since it was sustained. Judge Henare agreed with that assessment. N nevertheless seeks to

advance an argument that the application for review was deemed to have been decided in her favour because the Corporation did not allocate a hearing date for it within three months after receiving it.

Relevant principles

[16]   There is no dispute regarding the approach to be taken in the present context. The principles applicable to an application for special leave to appeal were helpfully summarised in Kenyon v ACC.3 In short, the requirement for leave provides a filter through which this Court can ensure that its resources will only be used to hear appeals on questions of law that have a reasonable prospect of success. This principle would be defeated if leave was granted as a matter of course.4

[17]   Importantly, the Court must ensure that it only entertains appeals on questions of law or questions of mixed law and fact. It must take special care to ensure that it is not being asked to determine appeals on issues that are essentially factual in nature.

Decision

[18]   On N’s behalf Mr Hinchcliff contends that Judge Henare made several errors of law in reaching her conclusion on the third aspect of the appeal. First, he argues the Judge failed to take into account the requirements of ss 136 and 137 of the Act. Section 136 requires the Corporation to advise the applicant for review that it has received the application and of the effect of ss 146 and 147 of the Act. Sections 146 and 147 relate to the circumstances in which a deemed review will apply and the effect of such a review.

[19]   However, Judge Henare expressly analysed this issue in her decision.5 She expressed her conclusion as follows:6

[111] A deemed decision does not arise in situations where the Corporation fails to acknowledge receipt [under s 136]. It only arises where the Corporation has not set a date for the review hearing within 3 months of the review application. Here, the Corporation appears to have set a hearing date

3      Kenyon v Accident Compensation Corporation [2001] NZHC 1301.

4      O’Loughlin v Healing Industries Ltd [1990] PRNZ 464 (HC).

5      N v Accident Compensation Corporation, above n 1, at [108]–[113].

6      Above n 1.

within the required 3-month period. The Act does not require the Corporation to specify the exact issues to be resolved at the hearing. It also does not prohibit the Corporation from setting a hearing date which will resolve two review applications. It only requires that a hearing date be set. The exact scope of the issues can be resolved prior to, or at the hearing. The Corporation set a hearing date for the reviewer to review any issues arising from decision number 1004687467. In my view, this was sufficient.

[20]   I agree with the Judge’s analysis. Furthermore, as I have already observed, the reviewer dealt with the challenge to the notice period at the hearing when submissions were presented in relation to the other two applications for review. This took place within three months of the date upon which the Corporation received the third application for review.

[21]   I accept that N may have a technical argument available to her on the basis that the Corporation failed to formally appoint a reviewer and allocate a hearing date for the third application for review. However, this is an argument relating to form rather than substance. Section 146 is plainly designed to ensure the Corporation arranges for applications for review to be determined in a timely manner. The sanction for failing to do so is that the application will be deemed to have been determined in the applicant’s favour. In the present case N had the opportunity both at the review hearing and the hearing in the District Court to advance not only her technical argument based on deemed review but also her substantive argument that she should have been given four weeks notice rather than two.

[22]Judge Henare’s reasoning on N’s substantive argument was as follows:

[119]          When addressing the issue of “reasonable” notice, the Reviewer considered:

I could not see any reason why the notice period of 2 weeks could be interpreted as anything other than reasonable, and in fact 4 weeks’ notice cannot be regarded as fair to the scheme generally or consistent with the intention of the legislature.

[120]          In my opinion, the Reviewer over-stated the position. There may well be situations where four weeks’ notice is too much, but there will be situations where four weeks’ notice will be necessary to allow a claimant to access alternative care and support pathways.

[121]Ms Becroft submitted

Giving two weeks’ notice, when it is clear that a bruise injury suffered several months earlier has long since resolved, in my substance is perfectly fair and reasonable”

[122]          I agree with this submission. In this case, I find two weeks’ notice was reasonable.

[23]   It follows that the mischief that s 146 was designed to address is not a feature of the present case. N has not suffered any prejudice as a result of the fact that the Corporation failed to expressly appoint a reviewer or allocate a hearing date for her challenge to the notice period.

[24]   During the hearing before me Mr Hinchcliff explained that he was placed at a disadvantage during the review hearing because he concentrated on the deemed review argument and was not prepared to deal with the substantive argument based on the reasonableness of the notice period. He believes he may have been able to provide authorities that would have assisted his argument that the Corporation should have given N four weeks notice rather than two.  This does not explain, however,  why  Mr Hinchcliff did not seek leave to adduce further evidence and argument on this issue when he advanced the appeal before the Judge. He could have taken that step without abandoning reliance on the deemed review argument.

[25]   For the sake of completeness I also record that Mr Hinchcliff sought to argue, without adducing evidence on the point, that the present case is but one example of the Corporation ignoring its obligations under s 136. He therefore contends the Judge’s decision has ramifications beyond the present case. I do not accept this is the case. First, the Corporation did not ignore the third application for review. Rather, it formed the view that it was a duplicate of the second. Secondly, this error appears to have occurred due to an unusual set of circumstances. These included the fact that the Corporation issued two separate decisions on 15 August 2019 and misunderstandings appear to have arisen regarding the claim numbers to be used on the applications for review. I do not view the Judge’s decision as having any precedential value beyond the present case.

[26]   Given that N has now had the substance of her argument examined by two separate tribunals there is no force to Mr Hinchcliff’s submission that she should now

have a third opportunity to advance the technical argument based on deemed review. Had it been necessary to do so, Judge Spiller would have exercised his discretion against granting leave for this reason.7 I am of the same view. I do not consider the resources of this Court, and those of N and the Corporation, should be expended on a further appeal that raises an issue entirely unrelated to the merits of N’s substantive challenge to the Corporation’s decision.

[27]   Finally, as Mr Hinchcliff acknowledged, if N’s argument is found to be correct the most that she can gain is earnings-related compensation for two further weeks. Such an outcome may be of considerable importance to her, but I do not consider it warrants the delay and expense of a further appeal.

[28]I therefore decline to exercise my discretion to grant leave for a further appeal.

Result

[29]The application for leave to appeal is dismissed.

Lang J

7      N v Accident Compensation Corporation, above n 2, at [46].