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Accident Compensation Cases

McDougall v Accident Compensation Corporation (DC, 23/09/05)

Judgment Text

J D Hole Judge
This application concerns the interpretation of cl 44(3) of the Injury Prevention, Rehabilitation, and Compensation Act 2001. This clause has not been the subject of judicial interpretation. 
Clause 44 reads: 
“44 Weekly earnings if employee on unpaid parental leave immediately before his or her incapacity commenced 
This clause applies to a claimant who is an employee on unpaid parental leave immediately before his or her incapacity commenced. 
For the purposes of calculating the claimant's weekly earnings, the date he or she began parental leave is deemed to be the date his or her incapacity commenced. 
For the purposes of determining the commencement date of entitlement to compensation for loss of earnings, the date on which the claimant would otherwise be required to return to work at the end of the parental leave is deemed to be the date his or her incapacity commenced. ”
The words requiring judicial interpretation are found in cl 44(3) and read “the date on which the claimant would otherwise be required to return to work”. In particular, a question has arisen as to the meaning of “required”
Question of Law 
Over the years, the Courts have given some guidance as to what constitutes a point of law: 
The issue must arise squarely from “the decision” challenged: eg Jackson v ACC unreported, HC Auckland, Priestley J, 14 February 2002, AP 404-96-01; Kenyon v ACC unreported, Fisher J, HC Auckland, 19 December 2001. Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP 287/01, 15 October 2002. 
The contended point of law must be “capable of bona fide and serious argument” to qualify for the grant of leave: eg Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001; 
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: eg Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361, 363 (CA); and 
Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339, 354. 
It is well settled that a decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow [1995] 3 All ER 48, 57. 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); and Edwards & Bairstow [1995] 3 All ER 48, 57
Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any contended point of law: eg Jackson and Kenyon above. 
Recently, the Supreme Court when quashing a decision of the Court of Appeal that it had jurisdiction to entertain a matter as an appeal on law stated in Bryson v Three Foot Six Limited [2005] NZSC 34
… The task which the Lower Court is engaged upon is the application of the law to the facts before it in the individual case. It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision maker misdirects itself in law …  
An appeal cannot, however, be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court, unless it is clearly unsupportable. 
… Whether or not Judges in an appellate Court might, if sitting in the Employment Court, have reached a different conclusion, as the majority in the Court of Appeal certainly would have done, it cannot be said that Judge Shaw has made a decision which is inconsistent with the evidence or contradictory of it or one which can properly be described as ‘insupportable’. ”
The appellant had ACC cover for personal injury which was caused by medical mishap during the birth of her son. Whilst she had requested and obtained parental leave for 12 months, the appellant had given the employer to understand that “it was her desire to return to work soon after the three months maternity leave”. The employer had indicated that if the appellant had sought to return to work before the 12 months period had expired, it would have been happy for her to do so. Thus, there was an arrangement between employer and employee for the taking of maternity leave for a period of 12 months. However, the appellant had indicated an intention to return to work at an earlier date and the employer had indicated its acquiescence. 
It is clear from the affidavit evidence that both parties were aware that the reason that the appellant was anxious to return to work before the 12 months period had expired was due to her financial situation. She had told the employer that she needed to return to work after three months for financial reasons. Furthermore, prior to the birth of the baby the appellant had arranged for a private caregiver to be employed as a nanny in anticipation of the appellant resuming work within three months of the birth of the child. 
The Decision 
Judge Ongley adopted the purposive approach of interpretation. He noted that “require” was defined in the Oxford Concise Dictionary (10th edition) as: 
Need or depend on. — wish to have. 
Instruct or expect (someone) to do something. — (require something of) regard an action or quality as due from. — specify as compulsory. Required by law. ”
He considered that the word “expect” in the definition was applicable in this instance and that the evidence established that both the employer and the appellant expected that the appellant would return to work before the 12 month period expired. He considered that the proper construction of cl 44 should avoid an unnecessarily contractual approach and that a requirement could exist as a consequence of an arrangement between the parties even though it might not be enforceable as a contract. He considered that this construction accorded with the context of the Act as a whole and the purpose of the legislation to the extent that it was discernible: CIR v Alcan New Zealand Limited [1994] 3 NZLR 439, 444. 
At para 35 he wrote: 
“I find that the date that the employer expected her to return was at least by the end of May 2004. I find that the employer was aware of the probability of her returning to work at that date and accepted that was when she would be likely to return work. I find that the expectation was clear enough to establish that this was the date on which she would have been ‘required’ to return to work, in the statutory context, if she had not suffered an injury. ”
ACC's Approach 
Counsel for ACC has noted that, even in a statutory context of fairness, the purposive approach to statutory interpretation is limited: 
“ … The Court's task is to interpret the text of the Act and not to rewrite it; it cannot give that text a meaning that it is quite incapable of bearing. There are often cases where the words of an Act are so clear in a particular sense that it is simply not possible to give them a different sense to satisfy the requirements of a wider purpose that the Act may seem to bear. ”
(Statute Law in New Zealand, J F Burrows, 3rd Edition, Lexis Nexis 2003).
ACC's submissions refer to the definition of “require” in the New Shorter Oxford English Dictionary (3rd Edition, 1993) as including: 
Demand (a thing) authoritatively or as a right, insist on having (freq. fol. by from, of); order of instruct (a person etc) to do something. ”
The submissions note that “expect” in the sense that it is used in the definition of “require” is to “require as appropriate or rightfully due” (Oxford Concise English Dictionary 10th Edition). Thus, in terms of cl 44(3), “required” involved an arrangement between the parties having some definitive quality: a probability or an indefinite expectation was insufficient. 
Clause 44(3) requires judicial interpretation. From the foregoing, it is apparent that it is capable of more than one interpretation. Thus, a question of law arises. 
Both counsel for the appellant and for ACC, together with the Judge, have looked at the requirement in cl 44(3) as resulting from some arrangement between the parties. It seems to me that a further interpretation is possible. There is nothing in the clause to indicate that the word “required” is limited to an arrangement between the parties. In this case, there is clear evidence that the appellant needed to return to work as early as possible for financial reasons. Thus, in terms of the definition contained in the Oxford Concise Dictionary (10th Edition), she needed to return to work, she wished to work, she was dependent on returning to work because of the financial pressures to which she was subject. The loose arrangement into which she had entered with her employer merely provided collateral evidence of a requirement due to her financial situation. 
It can be argued that the interpretation set out in the preceding paragraph is an interpretation which comes within s 5(1) Interpretation Act 1999 providing “the meaning of an enactment must be ascertained from its text and in the light of its purpose”. Further, this does not require a rewriting of the clause as envisaged by Professor J F Burrows. 
As indicated previously, this application involves the question of law requiring judicial interpretation. Leave to appeal is granted. 

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