Peterken v Accident Compensation Corporation

[2016] NZHC 778

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-276 [2016] NZHC 778

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an appeal on a quesiton of law pursuant to s 612 of the Act

BETWEEN

CHRISTINA ELSA PETERKEN Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	(on the papers)
Appearances:	J Walker for the Appellant D Tuiqereqere for the Respondent
Judgment:	26 April 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 26 April 2016 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms J Walker, Solicitor, Hamilton

Mr D Tuiqereqere, Medico Law Ltd, Solicitors, Auckland

PETERKEN v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 778 [26 April 2016]

[1]      This is an appeal arising out of a decision of the respondent, on 17 February

2009, to suspend the appellant’s entitlements on the basis that the respondent was not satisfied that her then condition was caused by her personal injuries covered under the Accident Compensation Act 2001.   The respondent’s decision was upheld on review and on a subsequent appeal to the District Court.1   The appellant was granted leave to appeal to this Court.2

[2]      As a result of further investigations by, and reports from, two orthopaedic surgeons the respondent has accepted that its original decision requires reassessment. The agreed position is recorded in a joint memorandum of counsel as follows:

The parties have agreed to settle the appeal on the basis that the respondent will, in light of the new specialist evidence from Mr Somerville and Mr Leigh, re-investigate the appellant’s entitlement to compensation for the period from February 2009 (this may include the respondent obtaining its own medical evidence in response) and, following such investigation, will issue a new decision with fresh rights of review for the appellant (under the ACC review and appeal process under Part 5 of the Accident Compensation Act 2001).

[3]      In these circumstances the parties have sought the following orders:

(a)      The appeal is allowed and the decision of the District Court issued on

16 February 2012 is quashed.

(b)The respondent is directed, in light of the reports from Mr Somerville and Mr Leigh, to investigate the appellant’s entitlement to compensation for the period from February 2009 and following its investigation make a new reviewable decision on the appellant’s entitlement to compensation for the period from February 2009.

[4]      As a general principle a considered opinion of a Court cannot simply be quashed on  appeal,  effectively because the parties agree that  that  is  the proper outcome.  The appellate court is bound to determine that there is a principled basis for setting aside the decision of the lower court.   In the circumstances outlined

above, and in counsels’ memorandum, I am satisfied that it is appropriate to quash

1      Peterken v ACC [2012] NZACC 50.

2      Peterken v ACC [2015] NZACC 114.

the  District  Court  decision  and  make  the  directions  sought.    The  grounds  for quashing the decision of the District Court are not that that decision was wrong on the basis of the evidence then before the Court; the reason for quashing the decision, as will be apparent, is that fresh evidence requires that result.

Result

[5]      There are orders as recorded in [3] above. [6]  Neither party has sought costs.

[7]      The fixture for the appeal on Thursday, 28 April 2016 is, of course, vacated.

Woodhouse J