Tonner v Accident Compensation Corporation - [2019] NZHC 1400

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…

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: [2019] NZHC 1400
Decision Date: 19 June 2019

CaseChat Overview and Summary

John Tonner applied for special leave to appeal against a decision of the District Court to dismiss his claim for retrospective weekly compensation under the Accident Compensation Act 2001. Tonner sought leave to appeal on the basis of two questions of law. First, whether the Accident Compensation Corporation's (ACC) assessment process and decision regarding Tonner's retrospective incapacity complied with s 103 of the Act. Second, whether the District Court erred in law by not directing ACC to assess Tonner under the correct law and procedure. The High Court found that the District Court did not err in law in dismissing Tonner's appeal, and therefore dismissed his appeal to the High Court. The court held that the District Court's conclusion that there was insufficient evidence to determine that Tonner was continuously incapacitated following the accident was a conclusion clearly available on the material before the court. The court also held that the contemporary evidence did not adequately establish incapacity and that Tonner's case would still face the same stumbling block even if ACC had undertaken a more thorough assessment.

Orders