Wildbore v Accident Compensation Corporation - [2009] NZCA 34

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA230/2008
[2009] NZCA 34
BETWEENPETER WILDBORE

Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:10 February 2009

Court:Hammond, Chambers and Ellen France JJ
Counsel:A C Beck for Appellant

A D Barnett and M M Ahern for Respondent

Judgment:27 February 2009 at 10 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.

B There will be no order for costs.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] This is an appeal by way of case stated, with the leave of the High Court, on the following questions of law:
(a)What is the correct approach for the District Court to follow in determining an appeal under s 145 [s 149] of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the Act”) against a determination of vocational independence?
(b)Did the District Court follow the correct approach in its decision on Mr Wildbore’s appeal?

[2]       The question as framed erroneously referred to s 145. The correct provision is s 149.
Background facts
[3]       In 2002, Mr Wildbore, the appellant, sustained injury to his left shoulder when he fell from a house bus he was working on.
[4]       The respondent, the Accident Compensation Corporation (“the Corporation”), accepted Mr Wildbore’s claim for cover. Detailed specialist investigations were carried out and surgical intervention was undertaken in May 2003.
[5]       In August 2003, as part of his individual rehabilitation programme, the Corporation referred Mr Wildbore to an appropriate specialist for an initial occupational assessment. She identified eight job options which, in her view, were suitable for Mr Wildbore.
[6]       In November 2003, Mr Wildbore underwent an initial medical assessment by Dr Bell, who did not consider that any of the eight identified job options were suitable for Mr Wildbore.
[7]       In February 2004, the Corporation referred Mr Wildbore to a different assessor, for a further occupational assessment. The new specialist identified 14 job options as being suitable for Mr Wildbore.
[8]       In March 2004, Dr Xiong undertook a further medical assessment. He found that nine of the identified job options were suitable for Mr Wildbore from a medical point of view. However, Dr Xiong noted that Mr Wildbore was “nevertheless still suffering from a significant chronic pain syndrome” arising out of his injuries.
[9]       In August 2004, Mr Wildbore completed a work trial programme at a travel and tour guide company, where he worked part-time for up to five hours a day for three weeks. The work trial report which was filed in September noted that Mr Wildbore was “quiet and did not communicate freely with visitors and staff”.
[10]     A further work trial was recommended. Mr Wildbore completed this at a hotel as a barman. The work trial report on this programme, prepared in November 2004, indicated that Mr Wildbore’s pain increased significantly as he increased his hours to more than 25 hours per week. He required more rest, and stronger and more frequent pain relief to manage…

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: [2009] NZCA 34
Decision Date: 27 February 2009

CaseChat Overview and Summary

This appeal concerns the statutory process for the review of a decision by the Accident Compensation Corporation ("the Corporation") to terminate weekly compensation payments to Mr Wildbore on the basis that he had achieved vocational independence. The central issue is whether the District Court Judge applied the correct principles in determining the appeal, under s 149 of the Injury Prevention, Rehabilitation and Compensation Act 2001. The High Court had previously determined that the District Court should not defer to the reviewer’s assessment of the evidence, but should form its own opinion. The Court of Appeal found that the District Court Judge had correctly applied these principles in the instant case. The appeal was dismissed with no order for costs.

The legal issues in this case related to the correct approach for the District Court to take when determining an appeal under s 149 of the Injury Prevention, Rehabilitation and Compensation Act 2001 against a determination of vocational independence. The first question was whether the District Court should reach its own conclusions on the evidence and merits, rather than deferring to the reviewer’s assessment. The second question was whether the District Court Judge had correctly applied the correct principles in this case. The Court found that the District Court should indeed reach its own conclusions, and that the District Court Judge had done so correctly in this case.

The Court of Appeal began by clarifying the correct approach for the District Court to follow in determining an appeal under s 149 of the Act. They found that the District Court should reach its own conclusions on the evidence and merits, rather than deferring to the reviewer’s assessment, and that the onus was on the applicant for review to establish that the reviewer was wrong. They found that this approach was consistent with the general principles of appeals. The Court then turned to the second question of whether the District Court Judge had applied these principles correctly in this case. The Court found that the Judge had indeed applied the correct approach, having objectively assessed all the evidence and reached his own conclusions on the merits. The appeal was dismissed with no order for costs.

Orders