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Accident Compensation Cases

Hutchen v Accident Compensation Corporation (DC, 13/09/05)

Judgment Text

DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
J D Hole Judge
Background 
1.
The background to this application is best described in the first five paragraphs of the judgment of Judge M J Beattie dated 5 March 2004. 
“[1]
The issue in this appeal arises from the respondent's decision of 27 July 2001 in relation to the appellant's entitlement to attendant care. The decision had the effect of making a payment to the appellant of the sum of $92,906 by way of arrears of attendant care. The arrears paid covered three distinct periods of time and this was set out in an accompanying memorandum to the respondent's decision. 
[2]
The first period of time was from 28 December 1994 to 22 June 1995. The respondent accepted that it had wrongly calculated the dollar value of weekly entitlement. The appellant had received $55.00 per week but the correct sum ought to have been $105.00 per week. The second period was from 30 September 1998 to 12 November 1999. An additional number of hours per week allowed supervision by the appellant's wife who cared for him at home. The third period was from 12 November 1999 to 17 April 2000 when a further adjustment was made to allow for the increased supervision which the appellant's wife carried out. 
[3]
The memorandum noted that for the period 23 June 1995 to 29 September 1998 there were no arrears payable and this was the period that the appellant had been assessed as having a nil entitlement, that decision being made at the time. 
[4]
The appellant has appealed the respondent's decision in order to assert a claim for 24 hour attendant care as from December 1994 pursuant to the Complex Personal Injury Regulations (CPI) which he asserts should have been applied to him from that date. 
[5]
The background facts relevant to this issue are not in dispute and may be stated as follows: 
The appellant sustained head and other injuries in a motor accident on 17 December 1993 and he obtained cover for those injuries. He suffered post traumatic amnesia and was diagnosed as having a moderately severe traumatic brain injury. 
At the time of this accident he was aged 45 years and was employed in a senior position as a Contract Manager for NZ Post. 
Following a period of recuperation after the accident and being discharged from hospital, the appellant returned to his employment, but could not deal with the tasks he was required to do and he was medically retired in December 1994. 
On 28 December 1994 an Attendant Care Assessment was carried out under the system set out in the Attendant Care Regulations. The appellant scored 46 points which was assessed as entitling him to a weekly sum of $55.00. 
A further Attendant Care Assessment was carried out on 18 April 1995, and in which assessment the appellant scored only 23 points which, pursuant to the Regulations, meant a nil entitlement. A decision to that effect was made on 21 April 1995 and the appellant was advised that if his condition deteriorated in any way he should contact his Case Manager to arrange a further assessment. The appellant did not seek a review of that decision. 
In September 1998 the appellant's Case Manager arranged a Scoping Assessment to identify the appellant's needs. That assessment dated 30 September 1998 identified the need for 24 hour supervision and four weeks respite care. 
The decision made following that Scoping Assessment was that the appellant be provided with 38 hours per week attendant care. 
On 4 November 1998 the appellant's Case Manager made application on his behalf for the appellant's injury to be considered a complex personal injury under the Complex Personal Injury Regulations 1994. The appellant was accepted as coming within the criteria of those Regulations and therefore eligible for the entitlements covered under those Regulations. 
In November 1999 the appellant was again assessed for his attendant care needs and by an assessment dated 12 November 1999 his weekly needs were assessed as being 35 hours and he received payment accordingly. 
By further assessment dated 18 April 2000 the appellant was assessed as having an attendant care entitlement of 105 hours per week. 
The appellant sought a review of that decision and by internal review that decision was varied to provide for 24 hours a day attendant care and the respondent agreed to conduct a review of past attendant care payments. 
The respondent's decision of 27 July 2001 was the consequence of that internal review and it had the effect of backdating attendant care payments based on 24 hour care from 30 September 1998 to 18 April 2000. From April 2000 onwards the appellant had already been receiving payment on the basis of 24 hour attendant care. 
The respondent's decision gave no consideration to any entitlement for attendant care for the period 23 June 1995 to 29 September 1998 but, as noted, it did adjust the earlier period from December 1994 to June 1995 because of an incorrect dollar calculation having been made at the time. 
The appellant sought a review of that decision seeking a determination that he be entitled to 24 hour care as from December 1994 and for payment of arrears on that basis to be made. 
In a decision dated 17 October 2001, the Reviewer found that the earlier assessments carried out in December 1994 and April 1995 had been correctly carried out and there had been no step taken to review those decisions at the time they were made. 
The Reviewer further found that no written application for consideration under the Complex Personal Injury Regulations had been made on the appellant's behalf prior to November 1998 and therefore the appellant's needs could not be considered under those Regulations for any period prior to November 1998. 
The Reviewer found that the respondent's decision accurately reflected the appellant's entitlements and it was confirmed. ”
2.
The crucial letter dated 27 July 2001 referred to a memorandum dated 20 July 2001. Under the hearing “Attendant Care Entitlement” the author of the memorandum wrote: 
“The following table outlines the assessments and level of attendant care provided, and whether the entitlement was correct: 
Period 28.12.94 to 22.6.95 
Entitlement provided $55 per week 
Comments: Calculation used wrong modifying factor under regulations — should have received $105 per week. Arrears are payable. ”
3.
In his judgment dated 5 March 2004, Judge Beattie concluded: 
“In summary then, I find both as a matter of fact and as a matter of law, that the appellant has no right of claim to attendant care for the period from December 1994 to September 1998 in addition to that which he has received and therefore there is no basis of any adjustment. This appeal is dismissed. ”
Applications for Leave to Appeal 
4.
The grant of leave requires that the intended appellant show a tenable case that “the decision of the District Court as being wrong in law”
5.
Over the years, the Courts have given some guidance as to what constitutes a point of law: 
5.1
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. 
5.2
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; 
5.3
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 
5.4
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. 
5.5
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. 
5.6
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); Edwards & Bairstow [1995] 3 All ER 48, 57
5.7
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. 
5.8
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
“[21]
… 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 …  
[25]
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. 
[40]
… 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’. ”
Issues 
6.
When initially considering this application for leave to appeal, considerable difficulties were experienced in determining exactly what the issues were. As a result of a memorandum sent to counsel, these have now been defined as follows: 
(i)
Can the December 1994 application for attendant care be construed as an application coming within the ambit of Reg 6 of the Complex Personal Injuries Regulations? 
(ii)
Alternatively, if there was no consideration on whether the December 1994 application came within the ambit of Reg 6, this matter was considered by implication as part of the 27 July 2001 letter and thus that letter was a new decision on this matter at that time. 
(iii)
As the 27 July 2001 letter adjusted some of the weekly amounts, the Corporation should have taken all factors relevant to such a calculation into account including the CPI Regulations. 
(iv)
If there was no application under the CPI Regulations, can any later acceptance of the claim under those regulations be taken into account in any reassessment? 
Determination 
7.
(a)
Can the December 1994 application for attendant care be construed as an application coming within the ambit of Reg 6 of the Complex Personal Injuries Regulations? 
In this regard, Judge Beattie said at para 25 of his decision: 
“It was one of Miss Ross's submissions that the CPI Regulations ought to have been taken as having been applied for to cover the appellant's case in December 1994, by which time those regulations were in force. It is clear from the facts of the case that the respondent did not consider the CPI Regulations and made no decision in respect thereof at or about December 1994. I find that it cannot be construed that any written application that may have been received by or on behalf of the appellant made no reference to it being an application for consideration under the CPI Regulations. ”
This statement of Judge Beattie is a finding of fact that there was no application in terms of the CPI Regulations in 1994. Accordingly, there was nothing relevant to the CPI Regulations in respect of which a decision could be given which could ultimately be the subject of review. 
(b)
Alternatively, if there was no consideration on whether the December 1994 application came within the ambit of Reg 6, this matter was considered by implication as part of the 27 July 2001 and thus that letter was a new decision on this matter at that time
Again, the short answer to this submission is that if there was no application, there could have been no consideration of it. It is not possible to imply a consideration of it from the 27 July 2001 letter. That letter, as Judge Beattie correctly stated at para 14 of his decision: 
“The substance of the respondent's decision was to make an adjustment to the weekly sum of attendant care to which the appellant had been entitled for the period 28 December 1994 to 26 June 1995. That decision did not revisit any level of eligibility for that care but, rather, it corrected an incorrect dollar calculation of the degree of eligibility that had been assessed back in December 1994. ”
No question of law arises from this statement. Judge Beattie made a purely factual decision. 
(c)
As the 27 July 2001 letter adjusted some of the weekly amounts, the Corporation should have taken all factors relevant to such a calculation into account including the CPI Regulations
Here, the recalculations undertaken by the 27 July 2001 letter involved a correction in the appellant's favour to the dollar calculation. The appellant's eligibility in terms of the CPI Regulations was not considered. As indicated previously, this was a factual finding. However, the question posed by this issue is whether the Corporation should have considered eligibility under the CPI Regulations. This does not arise from the decision. 
In any event this issue was conclusively decided by Judge Ongley in Langley v ACC (119/2005). The facts of that case were similar to this. He stated: 
“[33]
The novel point in this argument is whether it is permissible to look behind the bland words of a decision in appropriate circumstances and decide that the Corporation has in its reasoning reached a decision about a collateral matter which may then be the subject of review. 
[34]
It is said to be appropriate in this case because of the particular background of alleged unsatisfactory conduct of the original applications for compensation for intensive personal care, and because, while the express words of the 30 July 2003 application referred only to attendant care, the substance was an application for the kind of compensation which could be provided under the CPI Regulations then in force …  
[37]
Apart from those considerations, the circumstances here are not different in kind from the numerous cases in this jurisdiction deciding that confirmation of a prior decision does not constitute a new decision. To hold otherwise is to cut across statutory time bars and provide a new avenue of reopening old claims. The ratio of the judgments preventing such a course is that a decision on statutory entitlements is subject to review and appeal, or revocation by the Corporation. Otherwise it remains effective and is not revived or replaced by advice that the Corporation confirms it and does not decide to revoke it. That is what has occurred in this case. There is no avenue for avoiding time limits on grounds of apparent or manifest injustice. That can only be achieved by statutory amendment of the time barriers for review or appeal. ”
Judge Ongley's statement applies here. Effectively what the appellant is seeking is for the 1994 decision to be reopened. Judge Ongley's dictum (supra) indicates that it cannot be; and it is settled law that extraneous considerations cannot now be used to reopen a decision made a long time ago and in respect of which review and appeal rights have expired. In my view, this is a correct statement of the law and the question posed by the appellant raises nothing novel requiring serious argument or consideration in the High Court. 
(d)
If there was no application under the CPI Regulations, can any later acceptance of the claim under those regulations be taken into account in any reassessment? 
Given my answer in respect of the previous issue, and as the appellant has raised nothing further to support this issue, the answer to this question must be in the negative. 
Conclusion 
8.
I am satisfied that none of the issues raised on behalf of the appellant constitute issues of law capable of serious argument before the High Court. In those circumstances, leave to appeal to the High Court is declined. 

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