Simpson v Accident Compensation Corporation - [2023] NZHC 1661

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-2066

[2023] NZHC 1661

UNDER The Accident Compensation Act 2001

IN THE MATTER OF

A special leave application pursuant to s 162 of the Act

BETWEEN

ALBERT SIMPSON

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 4 May 2023

Appearances:

B Hinchcliff for the applicant

L Hawes-Gandar and F Becroft for the respondent

Judgment:

30 June 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 30 June 2023 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

SIMPSON v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 1661 [30 June 2023]

[1] The applicant, Mr Simpson, suffered a personal injury in November 2019. He applied for weekly compensation from the Accident Compensation Corporation (the Corporation). The Corporation declined Mr Simpson’s application. Mr Simpson applied for a review of that decision. The reviewer dismissed the application for review. Mr Simpson appealed to the District Court against the review decision. On 4 July 2022, Judge C J McGuire dismissed Mr Simpson’s appeal.1

[2] Mr Simpson wishes to appeal against the decision of Judge McGuire. By s 162 of the Accident Compensation Act 2001 (Act), he requires leave to appeal. On 27 September 2022, Judge P R Spiller declined leave to appeal. Mr Simpson now applies for special leave from this Court.

Background

[3] On 26 November 2019, Mr Simpson suffered a cardiac and wound infection treatment injury. In December 2019, he lodged a claim for cover. The Corporation informed Mr Simpson on 17 February 2020 that he was entitled to cover for the injury.

[4] Mr Simpson told the Corporation that until his incapacity he was working for a company of which he was a shareholder, Discovery River Cruises Limited (DRCL). DRCL operated river cruises. Mr Simpson said he was a very hands-on shareholder but that he had not had any earnings for some time. He said he had not filed tax returns with the Inland Revenue Department (IRD), because all of income earned by DRCL was used on maintenance of the cruise vessel.

[5] IRD records confirmed that Mr Simpson had not declared any employment earnings for the period from 2018 to 2020. Mr Simpson’s only income over that period was a pension.

[6] The Corporation declined Mr Simpson’s application for weekly compensation. It said that because Mr Simpson had not filed any tax returns it had no relevant earnings to assess and calculate for weekly compensation.

1 Simpson v Accident Compensation Corporation [2022] NZACC 128.

[7] Mr Simpson applied to review the Corporation’s decision. He made an affidavit to support his application. He deposed that he was a 50 per cent shareholder and director of DRCL and had worked an average of 42 hours per week. After explaining the work he had undertaken, he said he would expect reasonable earnings for a person doing his work would be a…

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: [2023] NZHC 1661
Decision Date: 30 June 2023

CaseChat Overview and Summary

Albert Simpson applied for special leave to appeal against the decision of Judge McGuire of the District Court, who had dismissed his appeal against the Accident Compensation Corporation’s (the Corporation) refusal to award him weekly compensation following a cardiac and wound infection treatment injury. Mr Simpson’s application to the High Court was dismissed. The central issue in the case was whether the Corporation’s refusal to award Mr Simpson weekly compensation was justified under the Accident Compensation Act 2001 (the Act). Mr Simpson claimed that he should be entitled to weekly compensation as a shareholder-employee, even though his tax returns showed no income from his company, Discovery River Cruises Limited (DRCL). The High Court found that the proposed questions of law were not seriously arguable. The court held that the Corporation was not obliged to consider Mr Simpson’s potential earnings as a shareholder-employee if his tax returns showed no income from DRCL. Furthermore, the court found that cl 42 of sch 1 of the Act, which adjusts the earnings of low earners, did not apply to Mr Simpson’s case because cl 39, which deals with claimants who had earnings as shareholder-employees, did not apply to him. The court concluded that the proposed questions of law did not arise from the District Court’s decision, and they were not capable of serious argument. Therefore, the court declined Mr Simpson’s application for special leave to appeal.

Orders