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Accident Compensation Cases

Accident Compensation Corporation v J (DC, 14/10/15)

Judgment Text

JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
This is an application for leave to appeal against my judgment of 31 July 2015 allowing the respondent's appeal.1
| X |Footnote: 1
[2015] NZACC 222 
 
[2]
Pursuant to s 162 of the Accident Compensation Act 2001 the District Court has jurisdiction to grant leave to appeal on a question of law, with leave granted if the issue of law identified is “capable of bona fide and serious argument”.2
| X |Footnote: 2
Impact Manufacturing v ARCIC (unreported, High Court, Wellington, per Doogue J, AP 266/00, 6 July 2001 
 
[3]
Although the practice is long established in this jurisdiction that applications for leave to appeal are determined by a different District Court Judge to the one who has heard the appeal, for the reasons I set out in Vehicle Testing New Zealand v Accident Compensation Corporation3
| X |Footnote: 3
[2015] NZACC 154 
there is nothing in law to prevent a Judge who has heard the appeal from determining the application for leave to appeal where it is appropriate to do so, and in particular to avoid unnecessary delay. 
[4]
With regard to the present application the parties are in fact agreed that the issues raised in the application are indeed “capable of bona fide and serious argument” and that leave should be granted. 
[5]
I agree that leave should be granted. As noted by MacKenzie J in Accident Compensation Corporation v Algie4
| X |Footnote: 4
[2014] NZHC 1582 at [4] 
“It is generally appropriate when a Court grants leave to appeal to say less rather than more, since the judgment must stand for itself and it is not appropriate to make any further comment on the judgment itself. ”
[6]
Given this position I need note only that the judgment sought to be appealed from involved a legal analysis of the respondent's entitlement to weekly compensation pursuant to s 103(2) of the Accident Compensation Act 2001. In my judgment I concluded that the appellant continued to be incapacitated for the purposes of s 103(2)“because of … her covered injury”. Specifically because the respondent's injury was pregnancy arising out of a failed sterilisation I concluded that she “is entitled to weekly compensation because she is unable to work while she cares for her dependent child”.5
| X |Footnote: 5
At [19] 
For the reasons set out in the judgment I considered that this outcome was the inevitable consequence of the broadening of the scope of cover for pregnancy resulting from the judgment of the Supreme Court in Allenby v H.6
| X |Footnote: 6
[2012] NZSC 33 (incorrectly cited as Allenby v Accident Compensation Corporation in the judgment). 
In the absence of any binding authority on the issue whether I was correct to do so is clearly a matter capable of bona fide and serious argument, as well as being of significant general or public importance. 
[7]
Having determined that leave should be granted, the issue becomes what questions should be referred to the High Court. The applicant has identified a “net legal issue” on which the applicant seeks leave to appeal and encompassed within that broad issue are a number of other discrete legal issues. Collectively, and with some modification, it appears that these matters appropriately encompass the matters at issue, with questions raised by the applicant with regard to the effect of particular authorities standing to be considered in the specific questions identified. I therefore grant leave to appeal on the following questions: 
“Was the District Court correct to hold that the respondent is unable, because of her personal injury (the pregnancy), to return to her pre-injury employment in terms of s 103(2) of the Act? Specifically: 
[a]
Was the judgment inconsistent with the scheme of the Act governing entitlement to weekly compensation? 
[b]
Is a person ‘unable’ to engage in pre-injury employment on grounds other than physical or mental inability? 
[c]
Is it correct that there is nothing in the Act that requires pregnancy as an injury to stop at the birth of the child? 
[d]
With regard to the phrase ‘because of … her personal injury’ contained in s 103(2) of the Act: 
[i]
Was the fact that the respondent had no physical or mental incapacity immaterial to the question of causation under s 103(2)? and 
[ii]
Was the phrase wide enough to encompass the broader consequences of the respondent's covered injury, namely her obligation to care for her dependent child? ”
[8]
Costs on the application are reserved pending the outcome of the substantive appeal. 


[2015] NZACC 222 
Impact Manufacturing v ARCIC (unreported, High Court, Wellington, per Doogue J, AP 266/00, 6 July 2001 
[2015] NZACC 154 
[2014] NZHC 1582 at [4] 
At [19] 
[2012] NZSC 33 (incorrectly cited as Allenby v Accident Compensation Corporation in the judgment). 

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