Sohail v Accident Compensation Corporation - [2022] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002058

[2022] NZHC 1130

BETWEEN
MOHAMMED SOHAIL

Applicant

AND

THE ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 22 March 2022

Appearances:

Philip Schmidt for the Applicant Fenella Becroft for the Respondent

Judgment:

20 May 2022

Reissued:

26 May 2022

JUDGMENT OF MOORE J

[Application for special leave to appeal]

RECALLED AND REISSUED ON 26 MAY 2022 AT 2:00 PM

This judgment was delivered by me on 20 May 2022 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

SOHAIL v THE ACCIDENT COMPENSATION CORPORATION [2022] NZHC 1130 [20 May 2022]

Introduction

[1] Mohammed Sohail was formerly a self-employed taxi driver. He injured his neck in 2005. Mr Sohail said that this injury prevented him from working. He claimed work-related weekly compensation from the Accident Compensation Corporation (“ACC”). ACC began making payments but suspended them after Mr Sohail was unable to produce his logbooks.

[2] Three years later, Mr Sohail’s lawyer filed an application to review ACC’s decision. The application was withdrawn when ACC agreed to investigate the matter. ACC paid out backdated compensation.

[3] In 2010, Mr Sohail claimed for work-related compensation for depression and anxiety. As part of that process a doctor prepared a report which concluded that Mr Sohail was working part-time when he was injured and that he remained capable of doing so. A physiotherapist undertook a functional capacity evaluation and agreed that Mr Sohail could work part-time hours. ACC consequently suspended Mr Sohail’s entitlement.

[4] Mr Sohail appealed ACC’s decision. On 1 February 2019, Judge A A Sinclair dismissed the appeal.1 Mr Sohail sought leave to appeal. On 7 October 2021,
Judge G M Harrison refused to grant leave.2

[5] Mr Sohail now seeks special leave to appeal on the following two questions of law:

(a)Question One: Did ACC settle a prior dispute about entitlement to weekly compensation and if so, what is the effect of this?

(b)Question Two: Is the decision at issue a suspension decision or a revocation decision? If it is a revocation decision, did ACC need to prove the decision was made in error?

1 Sohail v Accident Compensation Corporation [2019] NZACC 7 (DC).
2 Sohail v Accident Compensation Corporation [2021] NZACC 157 (DC).

[6] The crux of this appeal is whether ACC, having initially accepted that Mr Sohail was working full-time as a taxi driver, can subsequently determine that he was in fact working part-time and cancel his entitlement to weekly compensation.

Mr Sohail’s claim for physical injury

[7] The history of Mr Sohail’s dealings with ACC is a reasonably lengthy. It starts with when Mr Sohail injured his spine. This was on 2 January 2005. He was certified unfit to work as a taxi driver. From mid-January that year he received weekly compensation payments from ACC.

[8] In February 2005, ACC referred Mr Sohail for an Occupational Medical Assessment with Drs Monigatti…

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: [2022] NZHC 1130
Decision Date: 20 May 2022

CaseChat Overview and Summary

Mohammed Sohail applied for special leave to appeal a decision of the District Court dismissing his appeal against a decision of the Accident Compensation Corporation (ACC) to suspend his entitlement to weekly compensation. Sohail claimed that ACC could not lawfully suspend his entitlement because it had previously accepted that he was working full-time as a taxi driver at the time of his injury. The High Court considered whether there was a reasonable prospect of success for the appeal and whether it was in the interests of justice to grant leave. The Court held that there was no reasonable prospect of success because the ACC was not estopped from making a different view on Sohail's hours of work prior to his injury. The Court also held that there was no issue of principle at stake and that it was not in the interests of justice for leave to be granted. The application for special leave to appeal was dismissed.

Orders