Tonner v Accident Compensation Corporation
[2019] NZHC 1400
•19 June 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-2528
[2019] NZHC 1400
UNDER the ACCIDENT COMPENSATION ACT 2001 IN THE MATTER
of an application for special leave to appeal under section 162 of the Act
BETWEEN
JOHN TONNER
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 5 June 2019 Appearances:
H Peart and P Schmidt for the Applicant F Becroft for the Respondent
Judgment:
19 June 2019
JUDGMENT OF MUIR J
This judgment was delivered by me on Wednesday 19 June 2019 at 11.00 am. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Solicitors:
Schmidt & Peart Law, Onehunga Medico Law Limited, Grey Lynn
TONNER v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1400 [19 June 2019]
[1] Introduction Mr Tonner seeks the special leave of the High Court to appeal from a decision of Powell DCJ (as he then was).1 He does so having been declined leave by Christiansen DCJ.2
[2] He advances two questions of law which he submits are seriously arguable and in the public interest, namely:
(a)Did ACC’s assessment process and decision regarding the applicant’s retrospective incapacity comply with s 103 of the Accident Compensation Act 2001 (the 2001 Act)?
(b)Did the District Court err in law by not directing ACC to assess the applicant under the correct law and procedure?
[3] Both parties’ submissions comprehensively addressed not only the principles applicable to an application for leave, but also the merits of the underlying appeal. That was inevitable, because of the requirement to show that an appeal has reasonable prospects of success if special leave is to be granted.3
[4] Counsel agreed that in these circumstances the most efficient use of judicial time would be for me to consider the application for leave and substantive appeal together. That is how I intend to approach the judgment. Had I been required to consider the application for leave on a stand alone basis I would have granted it on the established test. However, having now reflected fully on the substantive appeal, I am satisfied that it should, in turn, be dismissed. My reasons follow.
Background
[5] On 1 August 1997 Mr Tonner, his wife, and their then five year old son were involved in a serious head-on motor accident. All suffered significant injuries. The level of trauma associated with the accident was exacerbated by a post-collision fire.
1 Tonner v ACC [2018] NZACC 25.
2 Tonner v ACC [2018] NZACC 166.
3 Kenyon v ACC [2001] NZHC 1301 at [15].
Thankfully all managed to escape from their vehicle. Mr Tonner was hospitalised for five days with (among other things) a fractured sternum and collar bone.
[6] At the time Mr Tonner was self-employed in a tiling business, which he owned in partnership with business associate Mr Easton. Mrs Tonner also worked in the business.
[7] Between the date of the accident and 11 September 1997, Mr Tonner received weekly compensation. He then returned to work, where he remained until approximately 2007. He has been on a benefit since that time. He is now aged 70.
[8] At review in 2013, he was granted cover for mental injury, being post-traumatic stress disorder (PTSD) and major depressive disorder, both arising out of (and backdated to) the date of the accident. As a result, he sought retrospective weekly compensation backdated to 12 September 1997 on the grounds that he had, since that time, been continuously incapacitated by his injuries, including the mental injuries he sustained.
[9] His application was declined on 12 February 2015, with that decision upheld on review. He then appealed to the District Court. He relied on the evidence submitted at the review hearing, together with additional statements from his wife (from whom he has been separated for approximately 20 years) and Mr Easton. The thrust of that additional evidence was that although Mr Tonner had returned to work after the accident, he had not been able to function at his pre-accident level as a result of physical impairment, but more importantly difficulties with concentration and mood. Mr Tonner therefore submitted that he was incapacitated in terms of s 103(2) of the 2001 Act in that he was “unable, because of his … personal injury to engage in employment in which he … was employed when he … suffered the personal injury”.
[10] In terms of medical evidence, Mr Tonner relied on two reports. The first, by Dr Chris Walls, was dated 10 September 2014 and was prepared for ACC. Dr Walls is an occupational medicine specialist. He described Mr Tonner’s pre-accident employment in brief terms and with limited detail, referencing commencement of the business in 1991, and describing this as “a ceramic tile business which combined
wholesaling, retailing and contractual work (installation)”. He concluded that although intrusive symptoms of PTSD typically resolved over a period of six to nine months, this had not occurred with Mr Tonner. He said:
Therefore I would accept Mr Tonner as being substantially engaged at work from 12 September at some efficiency (80%) and with decreasing involvement until 2007 (10 years).
Over that period of time he would become increasingly dysfunctional I would
have assumed when interacting with the public, contractors, or in other areas of “stress”.
Therefore, in an entirely arbitrary manner and with the wisdom of hindsight I would suggest 80% engagement for 3 years (1997 until 2000), 60% engagement for a further 3 years and 50% engagement for the last 5 years (before he ceased work).
As far as I can determine from the information available to me he has been unfit for work from 2007 and this relates directly to his PTSD and Depressive Disorder.
[emphasis added]
[11] The second report was from Dr Greg Finucane and was provided to Mr Tonner’s counsel on 2 September 2016. Dr Finucane concluded that Mr Tonner was:
… most likely to have been unable to fully engage in his pre-injury employment. There would have been a contribution from all of the above factors. Not all of his occupational incapacity would have been accident related, but this would have been plausibly 50% even if his alcohol misuse accounted for the other 50%.
[12] Before the District Court, the sole issue was the adequacy of the evidence to establish that Mr Tonner had been continuously incapacitated since his accident on 1 August 1997. It was not at that point argued that ACC’s assessment process had failed to comply with s 103 of the 2001 Act. Accordingly, even if persuaded that such assessment process was non-compliant, no criticism could be made of the District Court’s approach. Nevertheless, the Corporation accepts the ability of Mr Tonner to advance the new arguments referenced in [2] above.
The legislative framework
[13]The relevant provisions are ss 102 and 103 of the 2001 Act:
102Procedure in determining incapacity under section 103 or section 105
(1)The Corporation may determine any question under section 103 or section 105 from time to time.
(2)In determining any such question, the Corporation—
(a)must consider an assessment undertaken by a medical practitioner or nurse practitioner; and
(b)may obtain any professional, technical, specialised, or other advice from any person it considers appropriate.
103Corporation to determine incapacity of claimant who, at time of personal injury, was earner, on unpaid parental leave, or recuperating organ donor
(1)The Corporation must determine under this section the incapacity of—
(a)a claimant who was an earner at the time he or she suffered the personal injury:
(b)a claimant who was on unpaid parental leave at the time he or she suffered the personal injury:
(c)a claimant who was within a payment period under the Compensation for Live Organ Donors Act 2016 at the time he or she suffered the personal injury.
(2)The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury.
(3)If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment.
(4)The references in subsections (1) and (2) to a personal injury are references to a personal injury for which the person has cover under this Act.
(5)Subsection (4) is for the avoidance of doubt.
[14] Section 162, in turn, provides that a party to a District Court appeal may, with the leave of the District Court, appeal to the High Court on any question of law. It further provides that if, as here, the District Court refuses leave, the High Court may grant special leave to appeal.
Grants of special leave
[15] The jurisdiction is well-settled. In order to obtain special leave, an applicant must identify an error of law that is capable of bona fide and serious argument. The question must also be of sufficient public or private interest to outweigh the costs and delay of further appeal. As Collins J observed in Matthews v ACC:4
That is unlikely to be the case where questions of fact are merely dressed up as questions of law.
[16]There must also typically be a reasonable prospect of success on appeal.
[17] Because of the approach adopted by the parties (and referenced to in [4] above), it is unnecessary for me to discuss the test further. It is, however, worth emphasising that the s 162 jurisdiction is confined to appeals on questions of law. Such questions may extend to the decision maker’s treatment of facts, but only in limited circumstances, namely, where there is no evidence to support the decision, the evidence is inconsistent with and contradictory of a decision, or the true and only reasonable conclusion on the evidence contradicts the decision.5 As I will indicate, the limitations on elevating errors of fact to those of law assume some significance in this case.
The District Court’s decision
[18] Having identified the relevant test under s 103(2) and (3) of the 2001 Act, Powell DCJ highlighted the particular issues that arose in relation to Mr Tonner’s retrospective claim. It cited Judge Cadenhead’s observations in Jamieson v Accident Compensation Corporation:6
(i)It is upon the appellant to show on a balance of probability that at the date of the alleged incapacity, because of the injury for which he had cover, he was incapacitated within the terms of the Statute.
(ii)Retrospective certification of incapacity will be acceptable in certain circumstances. However, the onus is on the claimant to provide evidence establishing a clear picture, or strong and supporting
4 Matthews v ACC [2018] NZHC 2769.
5 Edwards v Bairstow [1995] 3 ALLER 48; Taffi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
6 Jamieson v Accident Compensation Corporation [2004] NZACC 80 at [30].
evidence other than contemporary medical certificates of a continuing incapacity over the period in question.
[19] He went on to note that Mr Tonner was self-employed and that his status as such raised particular issues. He referred to the recent High Court decision in Crothers v Accident Compensation Corporation,7 in which Williams J approved the reasonable adaptation test on which Judge Ongley had relied in the decision under appeal. Such test had been expressed in terms, not of whether the applicant was substantially able to perform his pre-injury tasks, but whether he was able to continue his business (in that case farming) with reasonable adaptation – a test which Judge Ongley held might involve exchanging some work tasks with employees or family members who were available for the work and Mr Crothers confining his work on the farm’s steeper terrain to better weather conditions.
[20] Powell DCJ cited extensively from Williams J’s decision on that appeal, including his conclusion that:8
I consider that the reasonable adaptation test requires the assessor to:
(a)identify the core tasks of the self-employed category – here, sheep and beef farming on mixed flat and steep hill country; and
(b)assess whether those core tasks (all of them) can be done with a reasonable adaptation.
[21] Against this background, Powell DCJ considered that to accurately determine whether Mr Tonner was continuously incapacitated required:9
… a detailed understanding of what Mr Tonner’s pre-injury employment entailed coupled with a similarly detailed understanding of what he was then able to do when he returned to work, as well as a detailed understanding of the nature of the business so as to determine whether if there were tasks that Mr Tonner could no longer undertake, these could be done by reasonable adaptation.
[22] His Honour then reviewed the evidence of Mr and Mrs Tonner and Mr Easton, concluding that it failed to provide a detailed or clear picture of Mr Tonner’s
7 Crothers v Accident Compensation Corporation [2017] NZHC 259.
8 An application for leave to appeal Williams J’s conclusions on the testing capacity in the case of self-employed claimants was subsequently dismissed [2017] NZHC 1952 per Thomas J, as was a subsequent application for special leave (ACC v Crothers [2018] NZCA 35).
9 District Court decision at [16].
employment tasks pre-injury, or exactly what part of those tasks he was not able to do when he returned, let alone any detail on how the business may or may not have been re-organised to accommodate any issues arising from the accident, and whether or not this amounted to reasonable adaptation.10
[23] His Honour then turned to the reports by Dr Walls and Mr Finucane. He was clearly sympathetic to the Corporation’s decision to reject Dr Walls’ report. He said it lacked any foundation for the conclusion on incapacity and that this was reflected in what Dr Walls himself acknowledged was “an entirely arbitrary” assessment. He considered that there were similar problems with Dr Finucane’s assessment, because his conclusion about impaired function following the accident was based on Mr Tonner’s self-description (communicated through his solicitor).11
[24] In respect of the evidence relied on by Mr Tonner, his Honour’s overall conclusion was that it did not provide:12
… anywhere near a suitable foundation for determining Mr Tonner was continuously incapacitated in terms of the questions set out in s 103(2) of the Act.
[25] His Honour then went on to say that this conclusion accorded with the broader evidence before the Court on the appeal. Although he accepted that Mr Tonner did seek treatment for a range of psychological issues at various times after the accident, and that these almost certainly related to the mental injuries for which he had cover, this broader evidence did not support a conclusion that Mr Tonner was continuously incapacitated following the accident. He referred in this context to three medical reports obtained in the period 1999 to 2006.
(a)The first was from psychologist Mr Taylor. He said that Mr Tonner presented with a “complex mix of acute mood disorder, post-traumatic stress disorder, and chronic pain syndrome”, but, as his Honour
10 At [19].
11 Dr Finucane’s report (addressed to Mr Peart) included the observation “your description is that he was never as capable of running the business as he had been prior to the accident, relied on others for the day to day running of the business, this became less successful, he stopped working in 2007, going on to a sickness benefit”.
12 District Court’s decision at [24].
observed, there was no suggestion in the report that Mr Tonner was incapacitated. On the contrary, Mr Taylor noted that Mr Tonner had “cancelled a subsequent appointment because of business commitments” and that no further treatment was sought.
(b)The second was a comprehensive assessment undertaken in 2005 by psychologist Mr Barry Kirker. He noted that Mr Tonner “is working full time in his own retail tile business”. Although he also noted that Mr Tonner’s current mental state and behaviour were impacting on the business as a result of customer abuse and neglect of his accounts, the report nowhere suggests that Mr Tonner was unable to continue working in the business (a point emphasised by his Honour).
(c)The third report was in 2006 and was from Mr James Webb, a clinical psychologist and neuropsychologist. He also observed that Mr Tonner had been “in continuous self-employment since returning to work”. He recorded Mr Tonner’s self-assessment that he became aggressive and had difficulty communicating with people. He noted “he works fulltime as a self-employed tiler” and stated that Mr Tonner assessed himself as coping adequately until and unless problems occur. His conclusion was that Mr Tonner’s attention and concentration abilities were intact and normal but that he was nonetheless suffering from an untreated depressive disorder complicated by alcohol abuse.
[26] Powell DCJ further noted that even though Mr Tonner had stopped work in 2007, there was initially no suggestion of incapacity. Indeed, the first such reference was in 2011. The Judge observed that this was consistent with the practice records of Mr Tonner’s GP who, in the period 2001 to 2003, recorded four individual injuries for which the Corporation provided cover, but with no suggestion that there was any underlying problem impacting generally on his ability to work.
[27] Finally, the Court noted what it described as a “dearth of information” regarding Mr Tonner’s tiling business generally.13 His Honour said that while a single
13 At [35].
page of figures had been provided purporting to show significantly diminishing partnership income from 1997 to 2010, this fell “far short of providing any support for Mr Tonner having been continuously incapacitated following the accident” for reasons the Court then set out.
[28]His Honour’s conclusion was expressed as follows:
[36] Looking then at the evidence overall I am satisfied that the Corporation was correct in concluding there was insufficient information upon which it could determine that Mr Tonner was continuously incapacitated following his accident in August 1997. Instead the contemporary evidence available supports the conclusion that Mr Tonner was not continuously incapacitated following his accident and as a result the appeal must be dismissed.
The application for leave in the District Court
[29]The application for leave to appeal:
(a)challenged whether the reasonable adaptation test from Crothers was correct;14
(b)claimed that Powell DCJ had erred in his assessment of the evidence; and
(c)claimed that he had erred in law “when finding that there was insufficient information to determine the applicable legal test under ss 102 and 103 of the 2001 Act and Crothers v Accident Compensation Corporation, yet not finding (or addressing) that ACC itself had not met the minimum requirements under the Act when making the decision under appeal before His Honour.”
[30] This final point can be considered the genesis of the arguments advanced before me.
14 Crothers v Accident Compensation Corporation [2017] NZHC 259. This argument was not maintained in this Court.
[31] In relation to the application for leave, Christiansen DCJ held that the District Court had:
(a)Articulated the correct test.
(b)Comprehensively summarised the evidence.
(c)Identified reasons for its conclusion about a lack of contemporaneous support for any form of incapacity.
(d)Made its assessment in the context of a retrospective claim, where the onus on the claimant was to establish a clear picture of continuing incapacity.
(e)Determined that there was insufficient evidence to conclude retrospectively that the applicant had been incapacitated for more than 15 years.
(f)Had not relied on the reasonable adaptation test, but instead concluded there was insufficient evidence to support claims of incapacity for that period, noting that the applicant continued to work until 2007 in his pre-accident employment.
[32] Accordingly, the application was dismissed. Because of the approach I have adopted to the combined assessment of leave and the substantive appeal, it is not necessary for me to discuss the District Court’s lead decision further.
The arguments
[33] Central to Mr Peart’s case, on behalf of Mr Tonner, was Williams J’s conclusion in Crothers that, in any case involving the incapacity of a self-employed person, there is an obligation on the part of ACC to first identify the core tasks of the self-employment category and then to assess whether all of these could be done with reasonable adaptation. He emphasised the Corporation’s obligation under s 102(2)(ii)(a) to consider an assessment by a medical or nurse practitioner in respect
of the matters addressed in s 103(2), namely, whether the claimant was unable, because of personal injury, to engage in his/her former employment.
[34] While conceding that the Corporation was not obliged to accept such assessment, he said it would be in breach of its obligations if it omitted to obtain a statutorily compliant report and that the starting point for any such report was identification of the core pre-accident tasks. To the extent that Dr Walls’ report had failed to do so, he submitted that this was a Corporation responsibility and that the Corporation needed to make further inquiry, emphasising that in terms of s 102(2)(b) it was entitled to seek reports from any person it considered appropriate.
[35] He submitted, therefore, that Powell DCJ’s emphasis on the deficiencies in Dr Walls’ report and other evidence produced by the claimant was misplaced. The Corporation, he said, had not done its job. The District Court Judge should have referred the matter back to the ACC for the statutory exercise to be undertaken properly and its failure to do so amounted to an error of law. He emphasised that the Corporation has no discretion to decide whether to make a determination about incapacity, relying on the observation in Crothers v ACC that:15
Section 103(2) is plainly not discretionary. Its terms are mandatory and …. a claimant either has incapacity under s 103 or has not.
[36] In summary, his submission was therefore that there never had been a valid assessment and decision in respect of the applicant’s claim for weekly compensation, because ACC had not complied with the mandatory statutory requirements of s 103(2).
[37] By way of factual context to that submission, he provided a chronology of all the references in the medical notes between 1997 and 2005 to Mr Tonner’s mental health problems. Twelve separate mentions were identified including a 1998 reference to his being very angry and confused and wanting to know if “ACC could fund someone to work for he” (sic), and recurrent references to mood swings, anger outbursts, insomnia and depression.
15 At [31].
[38] In respect of remedy, Mr Peart invited remission of the case directly to the Corporation under High Court Rule 20.19(1)(c), for it to issue a new decision regarding Mr Tonner’s claim for weekly compensation entitlements. He submitted this was the appropriate course if this Court accepted that the legislation had not been applied as required (relying on KF v Accident Compensaation Corporation and McKeefry v Accident Compensation Corporation).16
[39] For the Corporation, Ms Becroft advanced a straightforward argument. Although acknowledging the medical record described some intermittent symptoms of mental health problems, she said that there was simply no evidence of incapacity “at all” in the period 1997 to 2007.17 She submitted that the District Court’s factual finding that there was insufficient information upon which it could determine that Mr Tonner was continuously incapacitated following the accident was decisive, even if there had been any process failure (which she denied).
[40] She submitted that, whatever conclusion was reached (either on the present evidence or after further inquiry) about the nature of Mr Tonner’s pre-accident tasks, the result would always be the same, because of the absence of contemporaneous evidence of incapacity. And she said that, beyond there being an absence of evidence, Powell DCJ had correctly identified that all the contemporary reports in fact supported only one conclusion – that Mr Tonner was not continuously incapacitated. She submitted that despite the reality that Mr Tonner was in continuous fulltime employment over the period, and indeed described himself in 2006 as generally coping adequately with the demands of his work, he was now arguing that the matter revert to the Corporation for what could only ever be an “academic” assessment of pre-injury tasks.
[41] In short, she submitted that, viewed in its totality, the evidence of an absence of incapacity was so compelling that the claim could never succeed with or without the additional information now said to be necessary. She said it was for the same reason that the Corporation dismissed Mr Walls’ report. It had purported to make an
16 KF v Accident Compensaation Corporation [2019] NZACC 10; McKeefry v Accident Compensation Corporation [2019] NZHC 612.
17 Discounting, of course, the period of acknowledged incapacity in the period immediately post- accident.
arbitrary assessment of incapacity divorced from the reality of the contemporaneous evidence.
Discussion
[42] This case exemplifies the difficulties often associated with retrospective claims under s 103. Indeed, it is one of the more extreme examples, given that by the time the claim was made, over 15 years had elapsed from the date of the accident and over five years from the date on which Mr Tonner had ceased working. Two years prior to the claim, his own psychiatrist Dr Kritzinger recorded in correspondence acknowledging the likelihood of PTSD as a consequence of the accident, that:
I think retrospective attribution of disability to his mental condition will be part of an entirely different debate and may be very difficult to illuminate given the time frame since the accident.
[43] For this reason, the authorities have consistently identified that the onus is on such claimants to establish a clear picture of incapacity over the relevant period and that, in such context, retrospective medical certificates will be treated with caution.18
[44] A defining feature of many claims in this category is the absence of contemporaneous medical evidence confirming incapacitating injury or condition. Often there will be an attempt to infill that lacuna with retrospective medical assessments and/or an applicant’s personal affirmation of incapacity. It is the frequent refrain of applicants that they are effectively penalised for stoicism in the face of incapacitating injury or condition and for ‘soldiering on” in their employment despite disability.19
[45] Farrelly v Accident Compensation Corporation20 is a recent appeal in this category. It involved a self-employed forensic accountant who had suffered a back injury in 2003. In 2007 he claimed that he had been incapacitated since that date,
18 Jamieson v Accident Compensation Corporation [2004] NZACC 80 at [30]; Bell v Accident Compensation Corporation [2011] NZACC 22.
19 I accept, as Courtney J did in Jones v Accident Compensation Corporation [2013] NZHC 2458 at [19], that the concept of “soldiering on” is not a principle of law precluding a finding of incapacity. Rather, it is an evidential consideration. Some cases go so far as to suggest it raises an evidential presumption e.g. Parr v Accident Compensation Corporation [2012] NZACC 47.
20 Farrelly v Accident Compensation Corporation [2016] NZHC 3153.
notwithstanding the fact that he had continued to work through much of the intervening period. After an investigation, which has similarities to that undertaken in the present case, he was denied weekly compensation on the basis of insufficient evidence of incapacity.
[46] On appeal to the High Court, he argued that the District Court had improperly dismissed this self-assessment of incapacity and that the absence of contemporaneous evidence of incapacitating condition simply reflected his belief that the condition (chronic pain syndrome) was one he had to live with and one for which neither his general practitioner nor specialists were likely to be able to assist him. The decision records ACC’s submission (with which I agree) that the nature of the pain described by the applicant could not be regarded as determinative because:21
It is not the existence of the pain per se which constitutes an incapacity. Rather, it is the impact of the pain on the capacity of the sufferer to continue in his or her work.
[47]Having set out the relevant provisions of s 102(2), Dobson J observed:
[40] Arguably, in the absence of any medical reports from 2003 confirming that the impact of pain the applicant was suffering amounted to CPS that incapacitated him from continuing with his previous work, the mandatory obligation under s 102(2) could not be completed.
[48] Ms Becroft emphasises this passage because she says it fairly recognises the very practical difficulties which the Corporation often faces with retrospective claims
– the more so with very lengthy periods of delay, as in this case. She also emphasises that Dobson J did not regard the arguable inability of the Corporation to comply with the mandatory s 102(2) obligation as disqualifying its assessment.
[49] Dobson J then discussed the evidence, concluding that there was no error in the District Court’s analysis of whether the applicant made out incapacity in the statutory sense. He held:
[45] … no error arises if the Judge elects, in the circumstances of any particular case, that it is not appropriate to have regard to a claimant's own characterisation of his or her medical condition.
21 Farrelly v Accident Compensation Corporation [2016] NZHC 3153, at [39].
[50] Ms Becroft argues that the present case is even stronger from the Corporation’s perspective than Farrelly22 because, whereas Farrelly proceeded on the basis of an absence of contemporaneous evidence of incapacity, the contemporaneous record in this case persuasively establishes that there was no such incapacity.
[51] Powell DCJ deals with this record in detail in his decision, referring to the reports of each of psychologists Mr Taylor, Mr Kirker, and Mr Webb in 1999, 2005, and 2006 respectively. All such reports identify Mr Tonner as in full-time and continuous self-employment in his tiling business. None suggest that he was unable to continue to do so. Mr Webb’s 2006 report is of particular relevance, because it records Mr Tonner’s own contemporary self-assessment, viz:
He stated that he had worked continuously since returning to work 20 weeks after the accident. He stated that he believes that he copes adequately with the demands of his work until and unless problems occur in the work. At that time he will withdraw from the job and hand responsibility to his partner.
[52] Within the context of a test which focuses on inability to engage in pre-injury employment with reasonable adaptation, this represented a significant concession. Coupled with the unarguable evidence that Mr Tonner did, as a matter of fact, continue to work full time in his business for 10 years after the accident, I agree with Ms Becroft that it was close to decisive. The position was then further fortified by the absence of reference to an incapacitating mental illness in any of the GP reports from the early 2000s.
[53] In any event, I am, having regard to all evidence referred to, unable to say that Powell DCJ’s factual conclusion, that “Mr Tonner was not continuously incapacitated following the accident”, was so seriously awry as to invite intervention by this Court. To the contrary, it was, as Christiansen DCJ held, a conclusion clearly available on the material before him. The fact that Dr Walls was driven to make what he described as an “entirely arbitrary assessment” of disability confirms that conclusion and ultimately, therefore, why the Corporation was justified in rejecting the assessment.
22 Farrelly v Accident Compensation Corporation [2016] NZHC 3153.
[54]In reaching that point, I do not overlook the recent Court of Appeal decision in
Accident Compensation Corporation v Terry23 on which Mr Peart particularly relies.
[55] That case involved a retrospective incapacity determination under s 105 of the Act (the potential earner provision), rather than s 103. Mr Terry was a secondary school pupil who had suffered a serious spinal injury (a T12 fracture) in 2006. He received initial support from the Corporation, following which he returned to school and the file was closed. After he left school he lived a transient lifestyle, taking odd jobs but remaining largely unemployed. Three years after the accident he inquired about weekly compensation. The Corporation undertook an assessment and concluded that he was incapacitated through to October 2008, but that he was thereafter capable of undertaking work to which he was suited.
[56]Mr Peart emphasises the Court of Appeal’s observation at [43] that:
… ACC may not be able to discharge its obligations when determining the question of incapacity under s 105(2) without a very thorough assessment of whether a claimant is no longer incapacitated. Specialised occupational and medical reports may well be required to assess whether a claimant is able to engage in work for which that person would be suited.
[57] But the Court also emphasised that every retrospective claim will turn on its own facts and circumstances.24 What may in one case require specialised occupational therapist reports will not in another. In Terry, for example, the mechanical severity of the injury was such that it almost self-evidently resulted in incapacity beyond the acute post-accident period. An informed assessment could be made by a medical practitioner in terms of the effects the injury would have had. That is what occurred. By contrast, Mr Tonner did not suffer any necessary or self-evident incapacity after the acute period. Indeed, unlike Mr Terry, he returned to full time work. Moreover, the retrospective period for which Mr Terry sought entitlements was very much shorter than the period here.
[58] I accept that on the approach predicated in Crothers25 (including an assessment of reasonable adaptability) there was a requirement on the part of the Corporation to
23 Accident Compensation Corporation v Terry [2018] NZCA 585.
24 At [43].
25 Crothers v Accident Compensation Corporation [2017] NZHC 259.
identify (as best possible) the core tasks of the self-employed person, and I agree with Mr Peart that the mandatory medical or nurse practitioner’s assessment under s 102(2)(a) is directed to the question in s 103(2), and that this cannot typically be answered without such an understanding. Arguably, the brief discussion in Dr Walls’ report did not provide an adequate foundation for such assessment. But whatever assessment was undertaken or which now, 22 years later, may be made, I agree with Ms Becroft that Mr Tonner’s case would still face exactly the same stumbling block that it did at the point his earner related claims were declined because, as the District Court found, the contemporary evidence did not adequately establish incapacity.
[59] In the result, while I am prepared to answer the first question posed in terms “arguably so” I do not consider the District Court erred in law by not directing the Corporation to reassess the applicant.
Result
[60]I grant the application for leave in respect of questions 1 and 2.
[61] I find that the District Court did not err in law in dismissing Mr Tonner’s appeal and therefore dismiss his appeal to this Court.
[62]No application for costs has been made by the Corporation.
[63] I thank counsel for the able arguments advanced by them both orally and in writing.
Muir J
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