Van der Eik v Accident Compensation Corporation - [2020] NZHC 2523

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-226

[2020] NZHC 2523

IN THE MATTER of an appeal under s 111 of the Accident Compensation Act 1982

BETWEEN

ADRIAN VAN DER EIK

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 17 August 2020

Appearances:

A Beck for the Appellant

I G Hunt for the Respondent

Judgment:

25 September 2020

JUDGMENT OF COOKE J

Table of Contents

Procedural issue[5]

Approach to interpretation[13]

Retirement leave[15]

The statutory interpretation issues[19]

Remuneration under s 52(2)(a)[21]

Excluded as superannuation or a lump sum retirement allowance[25]

Is it long service leave pay?[30]

Is it normal average weekly earnings?[37]

Conclusion[47]

[1] The appellant appeals against a decision of the Accident Compensation Appeal Authority dated 23 October 2019.1 The Authority determined that the calculation of

1 van der Eik v Accident Compensation Corporation [2019] NZACA 7 [Authority decision].

VAN DER EIK v ACCIDENT COMPENSATION CORPORATION [2020] NZHC 2523 [25 September 2020]

the appellant’s earnings related compensation should not take into account retirement leave provided to the appellant under s 79A of the Police Regulations 1959 (the Regulations) following his retirement from the police force on medical grounds. The appellant’s entitlements arise under the now repealed provisions of the Accident Compensation Act 1982 (the Act). Under s 111 there is a right of appeal to the High Court from a decision of the Authority, with leave. By decision dated 6 May 2020 leave was granted.2

[2] Mr van der Eik left the Police in 1991 due to mental health issues following 13 years in the force. When he left the Police paid him out for untaken annual leave he had accumulated. It also paid him out for his retiring leave entitlement under r 79A of the Regulations. The payment for accrued annual leave was partially taken into account by the Corporation when calculating his earnings related compensation. But the Corporation did not take into account the retiring leave.

[3] On appeal the Authority accepted that the annual leave that had accrued in the 12 months before he left the police force was properly taken into account in assessing his earning related compensation, but not leave that accrued in previous years. That decision is not challenged on appeal.

[4] In terms of the retiring leave the Authority accepted that such leave fell within the concept of “earnings as an employee” under s 52(2)(a) of the Act, but it found that it was not relevant to the assessment of earning related compensation under s 53 as it was not part of his “normal average weekly earnings”. The Authority held:

[41] … it is excluded from relevant earnings because it is a one-off lump sum payment which, on no basis, could be said to fairly and reasonably represent normal average weekly earnings. As a lump sum payment made to Mr van der Eik only once in a career of about 13 years in the police, it cannot be said to "fairly…

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: [2020] NZHC 2523
Decision Date: 25 September 2020

CaseChat Overview and Summary

Adrian van der Eik appeals against a decision of the Accident Compensation Appeal Authority which found that the retirement leave provided to him under s 79A of the Police Regulations 1959 should not be taken into account when calculating his earnings related compensation. The authority held that the retirement leave was not part of his "normal average weekly earnings" under s 53 of the Accident Compensation Act 1982. The High Court was required to decide whether the retirement leave fell within the concept of "earnings as an employee" under s 52(2)(a) and whether it was part of the "normal average weekly earnings" under s 53. Cooke J found that the retirement leave was part of "earnings as an employee" under s 52(2)(a), but it was not part of the "normal average weekly earnings" under s 53. The leave entitlement was not part of Mr van der Eik’s average weekly earnings because he had not accrued any additional entitlement in any of the periods of time leading up to the point of his incapacitation. The appeal was dismissed.

Orders