Slight v Accident Compensation Corporation - [2017] NZHC 2716

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2016-485-978 [2017] NZHC 2716

BETWEEN
PETER JAMES SLIGHT

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 2 August 2017

Appearances:

J C Gwilliam for Appellant
T D Gee for Respondent

Judgment:

7 November 2017

JUDGMENT OF CLARK J

Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is
3 pm on 7 November 2017

SLIGHT v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 2716 [7 November 2017]

[1] The appellant, Peter Slight, had accident compensation cover for a lower back injury suffered in 1994. The Accident Compensation Corporation (the Corporation) suspended Mr Slight’s entitlement to weekly compensation in June 2011 because, for one reason or another, he failed to attend a medical assessment.

[2] Mr Slight applied under the Accident Compensation Act 2001 (the Act) for a review of the decision to suspend his entitlement. The review application was dismissed. Mr Slight appealed the review decision to the District Court. The appeal was dismissed.1 Mr Slight applied to have the judgment recalled. The application was declined.2 Mr Slight applied for leave to appeal the District Court decision. That application was dismissed.3

[3] Mr Slight now mounts a fifth challenge to the suspension decision by way of this present application for special leave to appeal to the High Court. Mr Slight seeks reinstatement of his entitlements to weekly compensation backdated to 2011.

Background

[4] In May 2011 the Corporation referred Mr Slight to Dr Waite for a Vocational Independence Medical Assessment (VIMA). Mr Slight subsequently advised the Corporation he had attended the address but Dr Waite was not there. Due to an administrative error Mr Slight had been given the wrong address.

[5] Mr Slight’s advocate, Mr King, contacted the Corporation about making a new VIMA appointment. On 16 June 2011 the Corporation wrote to Mr Slight (copied to Mr King) advising a new appointment with Dr Michael Antoniadis was made for 9 am on 23 June 2011 (the Antoniadis appointment). The letter advised:

ACC is able to decline to pay weekly compensation if a person unreasonably refuses to take part in these assessments, or otherwise does not attend.

[6] On 17 June 2011, Mr Slight’s case manager phoned Mr Slight’s home and left a message reminding him of the Antoniadis appointment. The case manager rang

1      Slight v Accident Compensation Corporation [2016] NZACC 40.
2      Slight v Accident Compensation Corporation [2016] NZACC 40 (Minute of Judge Henare).
3      Slight v Accident Compensation Corporation [2016] NZACC 303.

Mr Slight’s cell phone later that day and Mr Slight advised that his wife, as support person, likely could not attend the appointment. The case manager reminded
Mr Slight of the importance of attending the assessment and suggested his daughter might attend as a support person. The case manager advised Mr Slight if he did not attend it was possible the Corporation would view his failure as an unreasonable refusal to…

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: [2017] NZHC 2716
Decision Date: 7 November 2017

CaseChat Overview and Summary

The appellant, Peter Slight, sought a review of the decision of the Accident Compensation Corporation (the Corporation) to suspend his entitlement to weekly compensation payments. The application for review was dismissed, as was an appeal to the District Court. The appeal to the District Court was subsequently dismissed as was an application for leave to appeal to the High Court. Mr Slight now applies for special leave to appeal to the High Court under section 162 of the Accident Compensation Act 2001. The application is dismissed. Mr Slight raises four grounds of appeal: (a) he did not receive a fair hearing in the District Court by reason of deficiencies in his representation; (b) the District Court failed to address the reasonableness of the Corporation's decision to reschedule Mr Slight's appointment for a medical assessment; (c) the Corporation did not have power under the Act to suspend entitlements in the way it did; and (d) when issuing its decision letter to suspend Mr Slight's entitlements the Corporation failed to comply with section 117(2) of the Act. The first ground of appeal is that Mr Slight did not receive a fair hearing in the District Court. The Court held that the alleged failure in representation and, more specifically, the failure to place this evidence before the Court is not a question of law. The Court concluded that even if a serious question of law were raised, the appellant has not established special leave is required in the interests of justice. The second ground of appeal is that the District Court failed to address the reasonableness of the Corporation's decision to reschedule Mr Slight's appointment for a medical assessment. The Court held that the reasonableness of the Corporation's actions was a live issue before the District Court Judge and the Judge was assiduous in her attention to all of the evidence bearing, directly and indirectly, on the issue. The third and fourth grounds of appeal are that the Corporation did not have power under the Act to suspend entitlements in the way it did and that the Corporation failed to comply with section 117(2) of the Act. The Court held that the Corporation acted under section 117(3) of the Act and that there was no question of law justifying the grant of special leave to appeal. The Court concluded that Mr Slight has not demonstrated that an arguable question of law arises much less a question justifying the grant of special leave to appeal. The application for special leave to appeal is dismissed. The Corporation is entitled to costs.

Orders