SANDRA SMITH AND ACCIDENT COMPENSATION CORPORATION

[2024] NZHC 3123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2023-404-1957

[2024] NZHC 3123

UNDER

The Accident Compensation Act 2001

IN THE MATTER OF

An appeal under s 162 of the Accident Compensation Act

BETWEEN

SANDRA SMITH

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

On the papers
Counsel:	P Schmidt for the appellant I Hunt for the respondent
Judgment:	25 October 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 25 October 2024 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SMITH v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 3123 [25 October 2024]

[1]                 In a judgment dated 4 July 20241 I granted Mrs Smith special leave to appeal on the following question:

Do the apportionment instructions in the ACC Handbook, properly interpreted, allow apportionment between different impairments, or do they only allow apportionment of a particular impairment that is a result of multiple conditions, only some of which are covered by the Act?

[2]                 The parties have since had constructive discussions with respect to the substantive appeal. They have reached agreement on how the question should be answered. Breaking the question into two sub-questions, they agree as follows:

Question One: Do the apportionment instructions in the ACC Handbook, properly interpreted, allow apportionment between different impairments?

Answer: No

Question Two: Do they only allow apportionment of a particular impairment that is a result of multiple conditions, only some of which are covered by the Act?

Answer: Yes

[3]                 The parties ask that this Court answer the question accordingly. The parties also agree that this Court should direct the District Court to rehear the proceeding in accordance with those answers.

[4]                 Section 162(5) of the Accident Compensation Act 2001 (the Act) provides that the High Court Rules 2016 and ss 126–130 of the District Court Act  2016 apply to an appeal under s 162 as if it were an appeal under s 124 of the District Court Act. Section 128(1)(b)(i) of the District Court Act provides that the High Court may, after hearing an appeal, direct the District Court to rehear the proceeding. Section 128(2) states that, in making an order pursuant to s 128(1)(b)(i), the High Court “must state its reasons for giving a direction under subsection (1)(b)”. Section 128(3)(a) provides that the High Court can give any particular direction it thinks fit relating to rehearing the proceeding.

[5]                 The question upon which I granted special leave was raised in oral submission during the special leave hearing. No specific evidence on the question was filed, and

1      Smith v Accident Compensation Corporation [2024] NZHC 1801.

it was not the subject of submissions, in the earlier District Court hearing. In these circumstances it is appropriate that I refer the proceeding back to the specialist District Court bench that hears accident compensation appeals to consider (with the benefit of further evidence and submissions) how the answers to the questions of law may affect the whole-person impairment assessment of Mrs Smith.

[6]                 Given the cooperative approach of both parties since special leave was granted, it is appropriate that costs for the steps involved in the High Court proceeding since special leave was granted lie where they fall.

Result

[7]I allow the appeal.

[8]I answer the question as follows:

Question One: Do the apportionment instructions in the ACC Handbook, properly interpreted, allow apportionment between different impairments?

Answer: No

Question Two: Do they only allow apportionment of a particular impairment that is a result of multiple conditions, only some of which are covered by the Act?

Answer: Yes

[9]                 I direct the District Court to rehear the proceeding in accordance with those answers.

Campbell J