Revitt v Accident Compensation Corporation

[2014] NZHC 1394

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-003992 [2014] NZHC 1394

IN THE MATTER

of an intended appeal pursuant to s 162 of

the Accident Compensation Act 2001

BETWEEN

GEOFFREY REVITT Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	18 June 2014
Counsel:	A C Beck for Applicant H A Evans for Respondent
Judgment:	19 June 2014

JUDGMENT OF COLLINS J

Introduction

[1]      This  judgment  explains  why  I  am  declining  Mr  Revitt’s  application  for

special leave to appeal to the High Court.

[2]      I have reached the conclusion that the question of law Mr Revitt wishes to argue in the High Court is not capable of being seriously argued because the relevant legislation is very clear and was correctly interpreted by the District Court.

Context

[3]      Mr Revitt has sought special leave to appeal a decision of Judge Joyce QC delivered on 20 December 2012.   Special leave is required to appeal to the High Court because on 6 March 2014 Judge Powell declined leave to appeal Judge Joyce’s

decision.

REVITT v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 1394 [19 June 2014]

Background

[4]      Mr Revitt was employed as a slaughterman by Alliance Group Ltd (Alliance). Alliance is an Accident Compensation Corporation (ACC) accredited employer.1  An accredited employer acts as an agent of ACC pursuant to an accreditation agreement. Under s 184 of the Accident Compensation Act 2001 (the Act) an accreditation agreement may provide for the employer to be liable “… for some or all of the cost of providing entitlements in relation to work-related personal injuries suffered by the employer’s employees in that employer’s employment”.2   In return ACC charges the

employer reduced levies in relation to work-related personal injuries.3

[5]      Mr   Revitt   worked   for  Alliance   during   the   slaughter   season,   which commences in October/November and concludes in June/July the following year, for several years.  In the off-season Mr Revitt remained an employee of Alliance but did not receive remuneration from Alliance.  During some of his off-season Mr Revitt worked as a painter/decorator for another company.

[6]      On 22 December 2008 Mr Revitt suffered a work-related personal injury to one of his knees while working as a slaughterman for Alliance.  Alliance provided cover for the injuries and paid Mr Revitt his ACC entitlements.   Mr Revitt had surgery for his injury in July 2009.

[7]      On 17 September 2009 Alliance’s medical officer certified that Mr Revitt was fit to return to work as a slaughterman, but he was only partially fit for off-season work as a painter because he would have difficulty climbing ladders and scaffolding. Acting on this advice Alliance determined Mr Revitt was not incapacitated and that he was not eligible for ACC entitlements in relation to the off-season period.

Legislation

[8]      Section 103(1), (2) and (3) of the Act provides:

103     Corporation to determine incapacity of claimant who, at time of personal injury, was earner or on unpaid parental leave

1      Accident Compensation Act 2001, ss 181-189.

2      Section 184(1)(a).

3      Section 184(1)(b).

(1)       The Corporation must determine under this section the incapacity of—

(a)      a claimant who was an earner at the time he or she suffered the personal injury:

(b)      a claimant who was on unpaid parental leave at the time he or she suffered the personal injury.

(2)       The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury.

(3)       If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment.

Judge Joyce’s decision

[9]      Judge  Joyce  concluded  that  the  reference  in  s  103(2)  of  the  Act  to “employment” is and can only be a reference to the employment at the very time of the accident.4     Judge Joyce based his reasoning, in part, on the approach which Gendall J took to the meaning of s 103(2) of the Act in Accident Compensation Corporation v Vandy,5  in which it was held that in order to be incapacitated and eligible for weekly compensation a claimant must be employed at the time he or she suffers personal injury and not when he or she is subsequently affected by his or her injury.

Test for leave to appeal

[10]     Appeals to the High Court under the Act are confined to questions of law. The question raised must be capable of bona fide and serious argument to qualify for

a grant of special leave.6

4      Revitt v Accident Compensation Corporation [2012] NZACC 407 at [41].

5      Accident Compensation Corporation v Vandy [2011] 2 NZLR 131 (HC).

6      Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation

HC Wellington AP266/00, 6 July 2001 at [4].

Analysis

[11]     The approach taken by Judge Joyce is entirely consistent with that followed by Kós J in Murray v Accident Compensation Corporation.7     In that case Kós J carefully examined s 103 of the Act and said:8

… Section 103(1)(a) filters eligibility by requiring the claimant to be “an earner” at the time he or she suffered the personal injury.   That, … may contemplate a person not currently in employment.  However a finer mesh is then applied in s 103(2). That requires the Corporation to determine whether the claimant is unable (by reason of the injury) “to engage in employment in which he or she was employed when he or she suffered a personal injury”. That I think must include (to make sense of s 103(1)(b)) a person who was at the time on unpaid parental leave.  But Parliament has deliberately chosen the broader word “earner” at one place, and then subsequently the word “employment” later.   It tinkered with the provision in 2005.   It did not change the point of distinction, and indeed gave emphasis to it.  It is in my view clear that Parliament intended in s 103(2) to identify a point in time at which injury and employments must be contemporaneous.   “When” and “suffered” are both terms of precision.  It is clear that, as Gendall J held in Vandy, the claimant must have been engaged in employment when he or she suffered the personal injury.

[12]     Kós J declined leave to appeal in Murray because the “statutory wording is clear,  and  the  point  [was]  not  reasonably  …  capable  of  bona  fide  and  serious argument on further appeal”.9

[13]     I am prepared to accept for present purposes that the question of law which Mr Revitt wishes to pursue has implications that may affect a number of other persons.

[14]     I also acknowledge and respect the need for the Act to be interpreted in a

generous and “unniggardly” manner.10

[15]     However, before a generous and “unniggardly” approach can be taken, the legislation must be capable of being interpreted in the way suggested by Mr Beck on behalf of Mr Revitt.  In my view, the reasoning of Kós J in Murray is correct and

applies with equal force to Mr Revitt’s case.

7      Murray v Accident Compensation Corporation [2013] NZHC 2967.

8 At [38].

9      Murray v Accident Compensation Corporation, above n 8, at [68].

10     Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) at [19].

[16]     I am therefore of the view that an assessment of whether or not a claimant is incapacitated for the purposes of s 103 of the Act involves an assessment of whether or not the claimant lacks the capacity to perform the employment in which they were engaged when they suffered their personal injury.

[17]     In this case Mr Revitt has been assessed as being capable of continuing the employment he had at the time of his personal injury, namely that of a slaughterman. That is all that is required to be determined under s 103 of the Act.  The fact that Mr Revitt lacks the capacity to perform other work at a different time from when he suffered his personal injury is irrelevant.

Conclusion

[18]     Accordingly,  I  am  driven  to  the  conclusion  that  Mr  Revitt’s  proposed question of law is not capable of being seriously argued and his application for special leave must therefore be dismissed.

[19]     I am willing to receive submissions from counsel on costs.

D B Collins J

Solicitors:

Peter Sara, Dunedin for Applicant

Young Hunter, Christchurch for Respondent