Terry v Accident Compensation Corporation - [2017] NZHC 118

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-379 [2017] NZHC 118

UNDER the Accident Compensation Act 2001

IN THE MATTER OF

an application for special leave to appeal to the High Court pursuant to section 162 of the Act

BETWEEN

HAMAL TERRY Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 10 October 2016

Counsel:

T McGurk for the Appellant
F Becroft for the Respondent

Judgment:

9 February 2017

JUDGMENT OF MALLON J

Introduction

[1] Mr Terry suffered a serious spinal injury on 28 April 2006 when he was in his final year of school. Some five years later, when he had not been employed in any capacity for more than a few short periods, he was first assessed for an entitlement to weekly compensation. He was assessed as not incapacitated as a result of that injury after 1 November 2008. The Accident Compensation Corporation (ACC) therefore determined he was entitled to weekly compensation up until that date but not after
that date.

TERRY v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 118 [9 February 2017]

[2] That decision was ultimately confirmed by an ACC reviewer on 12

November 2012. The reviewer’s decision was upheld by the District Court.1 Leave to appeal was declined by the District Court.2 Mr Terry now seeks special leave to appeal to this Court.

[3] He advances the following questions of law which he considers are serious, arguable and of public interest:

(a) Did the District Court apply the correct statutory test for determining incapacity under s 105(2) of the Accident Compensation Act 2001 (the Act)?

(b)Was the manner in which the District Court retrospectively determined incapacity under s 105(2) of the Act fatally flawed?

(c) Was the District Court in error in accepting that ACC had met the requirements of s 117 of the Act as set out in Ellwood?3

[4] As developed in submissions, underlying the first two questions is Mr Terry’s concern that ACC ought to have followed its process for assessing vocational independence even though his entitlement to weekly compensation was being assessed retrospectively. This flawed process led to a decision where there was insufficient information before ACC to determine that he was no longer entitled to weekly compensation from 1 November 2008.

[5] ACC contends the application for special leave does not raise any arguable question of law. It contends ACC had evidence before it which overwhelming supported its decision.

Background facts

[6] Mr Terry sustained injuries to his back and neck from a sand boarding accident on 28 April 2006. He was 17 years old and in his final year at school at the

1      Terry v Accident Compensation Corporation [2015] NZACC 109.
2      Terry v Accident Compensation Corporation [2016] NZACC 130.
3      Ellwood v Accident Compensation Corporation [2007] NZAR 205 (HC).

time. ACC accepted cover under the Act. He was admitted to hospital where he underwent spinal surgery. He remained in hospital for three weeks.

[7] On 27 May 2006 ACC carried out a social rehabilitation assessment 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 118
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the matter of an application for special leave to appeal to the High Court pursuant to section 162 of the Accident Compensation Act 2001, Mr Terry sought to appeal the decision of the District Court which had dismissed his claim for weekly compensation. The District Court had determined that Mr Terry was no longer entitled to weekly compensation from 1 November 2008. The key legal issues were whether the District Court had applied the correct statutory test for determining incapacity under s 105(2) of the Accident Compensation Act 2001 and whether the manner in which the District Court retrospectively determined incapacity under s 105(2) was flawed. The court granted special leave to appeal, finding that the questions of law raised were serious, arguable and of public interest. The proposed questions of law were recast to focus on whether ACC could determine Mr Terry's capacity under s 105 when the assessment was retrospective, and whether the District Court failed to take into account relevant considerations in relation to the s 105 assessment.

Orders