Terry v Accident Compensation Corporation - [2018] NZHC 268

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-379

[2018] NZHC 268

BETWEEN
HAMAL TERRY

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 9 February 2018

Appearances:

D A Laurenson QC and F L Beecroft for the appellant T J McGurk for the respondent

Judgment:

28 February 2018

LEAVE TO APPEAL JUDGMENT OF CULL J

[1] The Accident Compensation Corporation (ACC) applies for leave to appeal to the Court of Appeal from the judgment of 26 September 2017 (the judgment) in which I made the following findings:1

(a)ACC’s determination under s 105(2) of the Accident Compensation Act 2001 (the Act) that Mr Terry was no longer incapacitated was flawed; and

(b)ACC and the District Court failed to take into account relevant considerations in relation to ACC’s termination decision under s 105(2).

1 Terry v Accident Compensation Corp [2017] NZHC 2352.

TERRY v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 268 [28 February 2018]

[2] ACC applies for leave to appeal on the first finding only, namely that the Corporation’s process and determination that Mr Terry was no longer incapacitated was flawed.

[3] ACC submits the first finding is wrong in law, that the alleged errors of law give rise to a serious question of law capable of bona fide and serious argument and the errors involve an important issue of public interest. The alleged errors of law focus on the first issue in the judgment and are:

(a)there is no requirement on ACC under the Act that, after determining that a claimant is not entitled to weekly compensation, ACC must update the claimant’s individual rehabilitation plan before determining incapacity; and

(b)the Act’s provisions dealing with rehabilitation are distinct from those dealing with weekly compensation. Thus ACC can determine incapacity without carrying out any of the further rehabilitation procedures under the Act.

[4] Mr Terry opposes this application. He argues ACC have misconstrued the nature of the requirements under the Act and the alleged error of law is misconceived.

The judgment

[5] On 22 July 2011, ACC retrospectively accepted that Mr Terry was entitled to weekly compensation from 15 December 2006 to 31 October 2008. ACC determined that Mr Terry was not incapacitated, as of 1 November 2008, on the basis of a retrospective medical assessment. ACC further determined that Mr Terry was entitled to receive weekly compensation for loss of potential earnings up until that date, but not after that date. ACC’s decision was confirmed by an ACC reviewer on 20 May 2013. The reviewer’s decision was subsequently upheld by the District Court.2 The

2 Terry v Accident Compensation Corp [2015] NZACC 109 (DC).

District Court later declined leave to appeal.3 Mallon J granted special leave for Mr Terry to appeal to the High Court.4

[6] The background facts,5 the relevant legislation,6 and the timing of the events following Mr Terry’s accident are set out in full in the judgment.7

[7] In relation to the first question, for which ACC applies for…

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: [2018] NZHC 268
Decision Date: 28 February 2018

CaseChat Overview and Summary

The Accident Compensation Corporation (ACC) applied for leave to appeal a judgment from the High Court of New Zealand, Wellington Registry. The case involved the determination by ACC that Mr Terry was no longer incapacitated, which ACC had decided based on a retrospective medical assessment. Mr Terry had been granted cover for weekly compensation up until 31 October 2008 but was deemed no longer incapacitated as of 1 November 2008. ACC's decision was confirmed by an ACC reviewer and subsequently upheld by the District Court. Mr Terry appealed to the High Court, which found that ACC's process and determination were flawed, leading to an order that the decision be remitted back to ACC.

The legal issues in the appeal focused on whether ACC's process for determining Mr Terry's incapacity was flawed, particularly concerning the statutory requirements for updating an individual rehabilitation plan and conducting vocational rehabilitation assessments. ACC argued that there was no statutory requirement to update the rehabilitation plan and follow the statutory procedures before determining incapacity under the Act. In contrast, Mr Terry contended that ACC had misconstrued the statutory obligations.

The court found that the judgment was fact-specific and did not suggest that vocational rehabilitation provisions needed to be followed before determining incapacity under s 105(2). However, the court determined that ACC's decision was flawed because it was based on unsatisfactory medical evidence. The court held that ACC's dual decision to grant and terminate weekly compensation conflated the two decisions, resulting in ACC failing to meet its statutory obligations. The court concluded that the finding was fact-specific and did not constitute a question of law capable of serious argument, thus declining the application for leave to appeal.

The final order was that the application for leave to appeal was declined, and 2B costs were to be awarded.

Orders