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Accident Compensation Cases

Robinson v Accident Compensation Corporation (DC, 10/11/15)

Judgment Text

RESERVED JUDGMENT OF JUDGE AA SINCLAIR 
Judge AA Sinclair
Introduction 
[1]
On 25 November 2013 the Accident Compensation Corporation (“the Corporation”) issued a decision declining Mrs Robinson's application for interest on arrears payments of earnings related compensation (ERC). Mrs Robinson now appeals that decision. 
[2]
Mrs Robinson claims that the Corporation had all information necessary to calculate payment of ERC from 1987 or 1989 at the latest, and seeks interest for the period from 1 July 1992 (interest not being permitted under the ACC legislation for any period prior to that date). 
Background 
[3]
Mrs Robinson injured her right knee on 21 December 1985 when she fell off her bike while delivering mail for New Zealand Post. In the initial claim form, her injuries were described as being a sprained knee. Two medical certificates were issued for the periods to 13 January 1986 and 13 February 1986. A third medical certificate was issued for the period to 24 March 1986. In this certificate Mrs Robinson's general practitioner Dr Brian Underwood stated that Mrs Robinson had been unfit since the date of the last certificate. He then went on to certify her as being fit to resume work on 24 March 1986. The Corporation provided ERC for about 13 weeks until 24 March 1986. At that time, Mrs Robinson was transferred to an unemployment benefit. 
[4]
Mrs Robinson's knee injury did not resolve and in July 1986 Dr Underwood referred her to Mr Denis Atkinson an orthopaedic surgeon. Mr Atkinson diagnosed a “near complete disruption of the anterior cruciate ligament” and recommended reconstructive surgery. This was performed in August 1986. Mr Atkinson provided a report to the Corporation on 8 January 1987. This report was prepared for the purposes of a lump sum payment claim. He described Mrs Robinson's condition at the time in the following terms: 
“Christine is aware of persistent stiffness in the right knee. There is an occasional ache felt in over the antero-lateral aspect of the knee joint. She is aware of some numbness over the anterior aspect of the knee joint. There have been no episodes of repeated swelling or giving way of the joint. There is no true locking. 
Because of her ongoing disability she [Mrs Robinson] remains totally unfit for work and is receiving sickness benefit. It should be noted that, following her injury, she was requested by her employer to cease duties. She subsequently resigned. At no time following her injury has she received earnings-related income. For the first half of 1986 she was receiving an unemployment benefit. 
[Mrs Robinson] had plans to enter the Army in 1986 and fulfilled all entry requirements but failed her medical examination because of disability in the right knee. ”
[5]
Mr Atkinson assessed Mrs Robinson as having a permanent disability of 10% right leg loss of function translating to 7.5% whole person impairment. 
[6]
On 23 January 1987 the Corporation wrote to Mrs Robinson stating that it was in the process of assessing her entitlement to lump sum compensation for the injuries which she had received. The letter went on to ask Mrs Robinson to write to the Corporation to explain any problems relating to her employment, home and social life and continuing pain so that the Corporation had a clear understanding of how the injuries were affecting her. 
[7]
On 9 February 1987 Mrs Robinson replied stating that she had not been employed since the accident. She went on: 
“I applied for the Army and was accepted to go in, in Feb 86, but because of the injury, [I] could not join and so resigned from the Post Office. I then applied for the unemployment benefit for 6 months. After the operation Dr Underwood put me on [the] sickness benefit and I have been receiving this ever since. Mr Atkinson has advised me to stay on the sickness benefit until April 87, when he will assess me [as to] whether I will be fit enough for the Army or not. ”
[8]
Lump sum payments were subsequently made to Mrs Robinson. On 1 December 1987 Mrs Robinson suffered a further injury while she was working at Waitaki Freezing Works. The client officer handling this claim spoke to Mrs Robinson on 21 December 1987. She noted: 
“ … I asked what she [Mrs Robinson] was doing prior to working at Waitaki and she advised she was on the sickness benefit for her knee. I asked why she was not on ACC and she advised that she did not know why but Doctor gave clearance. Advised we would write to Doctor and ask why he did not put client off on ACC but sickness benefit …  ”
[9]
On 22 December 1987 the Corporation wrote to Dr Underwood noting that Mrs Robinson had advised that prior to working at the Waitaki Freezing Works she had been on a sickness benefit due to her knee injury and inquiring why Mrs Robinson was referred to the Department of Social Welfare following her injury rather than ACC. 
[10]
Dr Underwood replied on 28 January 1988. However the information provided was vague and the Corporation wrote again on 4 March 1988. In that letter the Corporation further explained that Mrs Robinson had been given a clearance to return to work on 24 March 1986 but she had told the Corporation that due to her injury she was unable to return to work and had gone on to a sickness benefit. The Corporation sought confirmation that Mrs Robinson was still unfit for work after 24 March 1986 and copies of medical certificates for the relevant periods. 
[11]
Dr Underwood responded by letter dated 1 June 1988 stating that he was having difficulty sorting out all the dates. He stated: 
“She [Mrs Robinson] certainly did injure her knee in 1986 and was treated by me, conservatively, for a couple of months under ACC and returned to work on 24 March 1986. As far as I can remember she did get back to work, at that stage, although there may have been a small time span that she took off because her knee wasn't quite up to normal. ”
Dr Underwood went on in the letter to refer to Mrs Robinson's subsequent surgery in July 1986. He also observed that his records did not confirm any particular time off on sickness benefit and he was unable to issue the Corporation with any precise certificates concerning extra time off work. 
[12]
In a note on the Corporation's file dated 13 June 1988 the client officer has then recorded: 
“ … as far as I can see we are unable to confirm anything further. Doctor must have had good reason to place client [on] sickness benefit and not ACC. Suggest we do not pursue. Client has made no further approach …  ”
The file was then closed. 
[13]
Mrs Robinson subsequently called the Corporation on 19 September 1988 regarding her claim. Following a discussion with the client officer it was agreed that Mrs Robinson would endeavour to obtain medical certificates for the time that she was in receipt of a sickness benefit. At that time the Corporation held no medical certificates after 24 March 1986. 
[14]
On 13 December 1988 Mrs Robinson wrote to the Corporation enclosing copies of medical certificates from the Department of Social Welfare relating to her sickness benefit for the period from October 1986 to March 1987. She went on to ask the Corporation to write to Dr Underwood on her behalf inquiring as to why she was not granted ACC. As this inquiry had already been made the Corporation did not make any further approach to Dr Underwood. 
[15]
In a file note dated 6 January 1989 the client officer set out details of the claim and proposed seeking information as to Mrs Robinson's employment with the Post Office. This was approved and the Corporation wrote to New Zealand Post on 23 January 1989 requesting advice as to when Mrs Robinson resigned from her employment as a postwoman and the reason given for her resignation. 
[16]
Mrs Robinson rang the Corporation on 1 February 1989. In a file note of that conversation the client officer noted that she explained to Mrs Robinson that the Corporation had written to the Post Office. She went on: 
“Client said she could not remember exact dates but she thinks she resigned [from NZ Post] after she was declared fit by Dr Underwood because she was going to join the Army. When she was seen by the Army doctor she was told that she was not fit enough to join. ”
[17]
New Zealand Post replied on 8 February 1989 stating that Mrs Robinson had been employed as a temporary postwoman working 4 hours per day from October 1985 to 27 January 1986. She was off work after suffering a work related accident on 21 December 1985. The letter went on to record that Mrs Robinson had resigned of her own free will and did not return to work. 
[18]
Following a further review of the file the client officer set out her assessment of the claim in a file note dated 1 March 1989 and proposed that the Corporation should write to Mrs Robinson informing her that she had no further ERC entitlement. This file note was considered by a senior client officer who disagreed with this approach and queried why Mrs Robinson would have resigned from her employment unless she was sure that she had another job lined up. She suggested that a further letter be sent to Mrs Robinson and on 7 March 1989 the Corporation wrote to Mrs Robinson stating: 
“We write further to our telephone conversation on the 01/02/89. We have been advised by the Post Office that you resigned from their employment at your [sic] own free will not due to your injuries. 
At this stage we are unable to confirm any entitlement to earning related compensation however if you are able to provide confirmation from the Army that the only reason you were not accepted into the Army was due to your injuries and confirm the date your employment with them would have commenced. [sic] We can consider any entitlement you may have. 
If we do not hear from you within 28 days of this letter we will consider that you do not wish to pursue this aspect of your claim and close the file. ”
[19]
On 18 April 1989 a Dr Tait wrote to the Corporation stating: 
“Christine Robinson was employed by the Post Office in Wairoa for three months when she fell from her bicycle in the course of her duties as ‘postie’
As a result of the fall she sustained injuries to her left knee which later prevented her from entering the Army — two weeks prior to her planned enlistment on 22/2/86. 
She resigned prematurely from the Post Office on account of this injury. She says she received no appropriate advice and no ACC at that time. ”
[20]
On 12 May 1989 the Corporation wrote to Dr Tait enclosing a copy of the letter sent to Mrs Robinson in regard to her claim and a copy of the letter from the New Zealand Post Office. The letter stated: 
“Earnings related compensation [was paid to Mrs Robinson] up until the 24th March 1986 when she was declared fit for work. After this date because she had resigned from her position at the post office, Mrs Robinson was on the unemployment benefit until her operation on the 23rd July 1986 when she then received a sickness benefit. ”
A copy of the Corporation's correspondence with Dr Tait was also sent to Mrs Robinson. 
[21]
No further reply was received from Dr Tait. No information was received from the NZ Army or from Mrs Robinson and the file was subsequently closed in June 1989. 
[22]
On 1 October 2007 Mrs Robinson contacted the Corporation and applied for backdated ERC. Further reports were obtained from Mr Atkinson dated 5 June 2008 and 16 July 2008. Mr Atkinson noted that the severity of Mrs Robinson's original injury had not been recognised. In his report of 16 July 2008 he stated with reference to his earlier reports: 
“On my findings at that time I think it unlikely that Mrs Robinson was able to return to her pre-injury occupation as a cycle delivery postwoman for the New Zealand Post. Her work incapacity, in my opinion, is related to the injury she sustained on 21.12.85. ”
[23]
Following a review application and mediation, the Corporation accepted Mrs Robinson's claim for ERC backdated to March 1986 on the basis that she had had a “continuous incapacity for her pre accident employment as a postie since she had last received ERC in 1986”.1
| X |Footnote: 1
Letter from the Corporation to Mrs Robinson's agent dated 14 August 2008. 
 
[24]
In 2009 Mrs Robinson applied through her newly appointed solicitors for ERC in terms of s 53(5)(a) of the Accident Compensation Act 1982 in respect to her prospective Army earnings. This claim was eventually accepted and the arrears were calculated and paid. 
Parties' positions 
(a)
Case for Mrs Robinson 
[25]
Mr Peart submits that by January 1987 or by April 1989 at the latest, the Corporation had received all information necessary to enable the Corporation to calculate and make ERC payments. As to the medical evidence Mr Peart submits that by 19 January 1987 (when Mr Atkinson's report was received) the Corporation had specialist evidence confirming the serious nature of Mrs Robinson's ACL injury and also stating that her injury was the reason why she was unable to enter the Army in 1986 as planned. By 11 February 1987 further information as to her personal circumstances had also been received from Mrs Robinson. 
[26]
By the later date of April 1989 Mr Peart contends that the Corporation had also received a written request for compensation from Mrs Robinson. It had obtained confirmation that Mrs Robinson had resigned from New Zealand Post after suffering an accident and Dr Tait had clarified that Mrs Robinson had resigned prematurely from her job because of the injury and that it was the injury which prevented her from entering the Army. 
[27]
If it is not accepted that all necessary information was held by the Corporation at either of these dates, then Mr Peart further contends that the Corporation breached its statutory duty in that it failed to promptly consider the information provided or to make further enquiry and instead it simply closed Mrs Robinson's file. 
(b)
Case for the Corporation 
[28]
In summary the Corporation contends that it did not have all information necessary to be able to calculate and make ERC payments from March 1986 until receipt of Mr Atkinson's further reports in 2008. 
[29]
The Corporation then needed post incapacity earnings information and WINZ information to calculate and make the arrears payments.2
| X |Footnote: 2
The Corporation accepts that if it is found that the Corporation had all information necessary in 1987 or 1989 then the issue of post incapacity earnings does not arise. 
 
Discussion and Analysis 
[30]
Section 114(1) of the Accident Compensation Act 2001 provides that the Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within one month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment. 
[31]
In Accident Compensation Corporation v Miller3
| X |Footnote: 3
the Court of Appeal held that “all necessary information” could include further medical or financial information. In the present case, the Corporation contends that it did not have the necessary medical information to be able to make a decision prior to 2008. It says that because the necessary medical information was not available until that time it is at that stage that the issue arises as to the availability of “all the financial information necessary to enable calculation of the Compensation”
[32]
In Miller the Court of Appeal considered four possible scenarios in which the Corporation might make a decision to cancel or suspend compensation that is later overturned on appeal. These scenarios were not intended to be exhaustive and the Court observed that there may be more possibilities or there may be factual variations on the four listed. In this case the Corporation's cessation of ERC was not reversed or appealed. While the facts differed it was not in issue that the approach adopted in scenario (4) was applicable. 
[33]
Scenario (4) involved the situation where
“the original medical advice provided to the Corporation conclusively supports the cancellation of compensation, but later advice reaches a different conclusion4
| X |Footnote: 4
At para 47 
.”
The Court of Appeal held5
| X |Footnote: 5
At para 50 
“In (4), however, it cannot be said that the Corporation had ‘all information necessary’ to calculate the payment. That is because where all medical evidence available to the Corporation pointed against compensation it is not open to the Corporation to calculate and make the payment. In this circumstance interest will not become payable until such date as the Corporation does receive ‘all necessary information’. When determining when ‘all necessary information’ is received, however, the Court must keep in mind that appellants ought not to be penalised for failure to provide information that has not been requested by the Corporation. All new information received by the Corporation should be promptly assessed and, if it is necessary to seek further information either from the claimant or from (say) an independent assessor, this must be done without delay. ”
All necessary information held as at January 1987 or April 1989? 
[34]
As stated above, Mr Peart submits that the Corporation had all necessary information either upon receipt of Mr Atkinson's report in January 1987 or alternatively, on receipt of Dr Tait's letter in April 1989. 
(a)
January 1987 
[35]
In his report of 8 January 1987 Mr Atkinson noted that Mrs Robinson was totally unfit for work following her injury on 21 December 1985. Mr Atkinson went on to say that this was a work related accident and “I am somewhat perplexed as to why she has not received earnings related income up to this period.” It is apparent from this comment that Mr Atkinson did not know that Mrs Robinson had in fact received ERC up to 23 March 1986 and had then been declared fit by Dr Underwood. 
[36]
This report was prepared in respect of Mrs Robinson's claim for a lump sum payment not for any ERC claim. After her operation in August 1986 Mrs Robinson went on to a sickness benefit. In the interim, she was in receipt of an unemployment benefit. She did not make any further application for ERC in this period. 
[37]
A medical certificate had previously been provided by Dr Underwood declaring Mrs Robinson fit to return to work on 24 March 1986. I accept the Corporation's submission that at this point the Corporation held conflicting information as to Mrs Robinson's continuous incapacity. 
[38]
As well, there was uncertainty around Mrs Robinson's employment. The date and circumstances of her departure from New Zealand Post were not known. While Mr Atkinson and Mrs Robinson had referred to her application to join the New Zealand Army no further information had been provided to the Corporation about this prospective employment. 
[39]
In these circumstances, I am satisfied that the Corporation did not have all necessary information in January 1987 to calculate and make ERC payments. 
(b)
April 1989 
[40]
During 1988 the Corporation sought information as to why Mrs Robinson had been certified fit to return to work on 24 March 1986. It was plain from Dr Underwood's subsequent letters to the Corporation that he had little recollection of Mrs Robinson's injury and subsequent events and was not able to clarify the circumstances in which he issued the certificate. 
[41]
I accept that it was appropriate to investigate the 24 March 1986 medical certificate. However in the absence of a satisfactory explanation as to why the certificate was issued it was not appropriate to simply adopt the position that Dr Underwood must have had good reason for issuing the certificate as appears to have happened.6
| X |Footnote: 6
Internal file note dated 13 June 1988 
In my view it was necessary to then look at all the evidence. Mr Atkinson stated in his detailed report of 8 January 1987 that Mrs Robinson suffered an ongoing disability following her injury and remained totally unfit for work. He said that he was perplexed as to why Mrs Robinson had not received ERC “up to this period” (January 1987). While Mr Atkinson was wrong in his understanding (in that Mrs Robinson did receive ERC payments to 23 March 1986) his comment clearly supports his view that Mrs Robinson had remained unfit to return to work throughout the period. 
[42]
Mr Atkinson's report is also supported by Mrs Robinson's own statement to the Corporation in her letter dated 9 February 1987 that she had not been able to work following the injury. Both statements (made about a year after Mrs Robinson suffered the injury) are further reinforced by the events in the intervening period. 
[43]
In these circumstances I consider that the Corporation had all information necessary to enable the Corporation to calculate and make ERC payments by April 1989.7
| X |Footnote: 7
Mr Tuiquereqere sought to place some weight on Dr Tait's letter of 18 April 1989 to the effect that Dr Tait did not suggest that Mrs Robinson was unfit to work from 24 March 1986. Dr Tait's involvement with Mrs Robinson predated March 1986 and furthermore it was not a matter on which he was being asked to comment. 
In this regard I note that the Corporation finally accepted that it had sufficient information in July 2008 following receipt of two further reports from Mr Atkinson. On a careful reading of these reports it is apparent that Mr Atkinson says nothing more about Mrs Robinson's injury and ongoing disability than what he did in his report of 8 January 1987 (recognising that the earlier report was for the purpose of a lump sum claim). 
[44]
On 23 January 1989 the Corporation wrote to New Zealand Post enquiring as to the circumstances of Mrs Robinson's departure. NZ Post replied that Mrs Robinson had resigned of “her own free will” on 27 January 1986. The Corporation appear to have taken from that comment that Mrs Robinson's resignation was not because of her injury even though Mrs Robinson was still in receipt of ERC at the time.8
| X |Footnote: 8
Internal file note dated 1 March 1989 
To the extent that there may have been any doubt, Dr Tait made it clear in his letter of 18 April 1989 that Mrs Robinson's injury was in fact the reason for her resignation from NZ Post. 
[45]
I turn now to consider the position with regard to Mrs Robinson's intended employment with the NZ Army. Reference had been made by Mr Atkinson in his report of January 1987 to Mrs Robinson fulfilling all the entry requirements to join the NZ Army but failing her medical. Likewise Mrs Robinson also referred to this prospective employment. However no supporting documentation was ever provided by Mrs Robinson or otherwise on her behalf. 
[46]
The Corporation wrote to Mrs Robinson on 7 March 1989 advising her that the Corporation was unable to confirm her entitlement to ERC at that time but that the matter would be reconsidered if she was able to provide confirmation from the Army that the only reason she was not accepted into the Army was due to her injury and also to confirm the date that her employment with the Army would have commenced. I am satisfied that this information was necessary for the Corporation to be able to determine Mrs Robinson's employment status. 
[47]
The Corporation then received the letter of 18 April 1989 from Dr Tait.9
| X |Footnote: 9
While was not immediately apparent from the letter Dr Tait was the Army Recruitment Doctor in the local area. 
Dr Tait recorded that as a result of a fall Mrs Robinson sustained injuries to her left knee (it was her right knee) which later prevented her entering the Army - “2 weeks prior to her planned enlistment on 22/2/86.” (Her injury in fact occurred on 21 December 1985). However the letter did not provide any of the information requested. 
[48]
No correspondence was received directly from the New Zealand Army or via Mrs Robinson confirming that Mrs Robinson had been accepted as a recruit, her starting date and setting out the reason why she was subsequently not accepted. The Corporation wrote a second time to Dr Tait but no reply was received from him. A copy of the correspondence with Dr Tait was sent to Mrs Robinson. However Mrs Robinson did not reply. In these circumstances I am satisfied that as at April 1989 the Corporation did not have sufficient information to determine Mrs Robinson's employment status with the NZ Army. 
[49]
Accordingly, for the reasons set out above, I find: 
(a)
with regard to Mrs Robinson's NZ Post earnings that the Corporation had all information necessary to enable the Corporation to calculate and make ERC payments by April 1989; 
(b)
with regard to Mrs Robinson's prospective earnings from the NZ Army the Corporation did not have all information necessary in April 1989 and did not have such information until further documentation was provided in 2009. 
Conduct of the Corporation? 
[50]
Mr Peart submits that the Corporation did not follow up on matters following receipt of Dr Tait's letter but instead, closed the file. Mr Peart contends that in taking this action the Corporation failed to undertake its statutory duty to properly analyse the existing information on the file or to take steps to obtain information directly from the NZ Army as the prospective employer. He contends that it is not reasonable for the Corporation to pass the statutory burden back on to Mrs Robinson who Mr Peart submits was at that time a young woman with very limited knowledge about the ACC scheme and its requirements. 
[51]
I do not accept that the actions of the Corporation fell short in this regard. The Corporation wrote to Mrs Robinson clearly setting out the information it required being confirmation from the New Zealand Army that the only reason Mrs Robinson was not accepted into the Army was due to her injury and also confirmation as to the date that her employment would otherwise have commenced 
[52]
Mr Peart submits that the situation is similar to the case of Harris10
| X |Footnote: 10
Harris v ACC [2014] NZACC 326 
where the claimant was unaware of his entitlement because of the complexity of the legislation. I do not agree. The Corporation made a simple request for information. Mrs Robinson chose of her own volition to go to Dr Tait when the letter clearly sought information from the NZ Army. For the reasons discussed above, I do not consider that Dr Tait's letter assisted the Corporation. However, the Corporation did not leave matters there and wrote again to Dr Tait and to Mrs Robinson. No further information was provided and Mrs Robinson did not contact the Corporation again in respect to this claim until 2007. 
[53]
Furthermore I do not accept that Mrs Robinson's age is of any relevance. By April 1989 Mrs Robinson had been engaged with the Corporation intermittently over a 3- 4 year period in respect of two claims and had provided information as requested during that time. In my view Mrs Robinson was more than capable of obtaining the information as directed. Notably in December 1988 Mrs Robinson asked the Corporation to obtain information direct from Dr Underwood. She was therefore fully aware that she had that option available but did not make any similar request on this occasion. 
[54]
I am mindful of the Court of Appeal's statement in Miller that a claimant ought not to be penalised for failure to provide information that has not been requested by the Corporation. However in this case Mrs Robinson had been requested to provide information which was clearly set out in the Corporation's letter of 7 March 1989. She did not supply this information or ensure that it was provided on her behalf. 
[55]
I am satisfied on the evidence that the Corporation made proper enquiry and gave prompt consideration to the information provided. 
[56]
Finally, Mr Peart refers in his submissions to an internal memorandum prepared in 2013 critical of the Corporation's failure to consider the implications of Mr Atkinson's report in the context of Mrs Robinson's entitlement to ERC. The author was of the view that the Corporation had committed a service failure and Mrs Robinson was entitled to receive interest from that period for late payment of ERC. That report was evaluated by the weekly compensation panel. That panel formed a different view. It is the role of the Court to determine the matter on the evidence and accordingly I do not place any weight on this memorandum or the panel's subsequent decision. 
Decision 
[57]
The review decision is quashed and the decision of the Corporation not to pay interest is set aside to the effect that Mrs Robinson is entitled to interest from 1 July 1992 on her weekly compensation assessed on her pre accident employment earnings with NZ Post but not on her prospective earnings with the NZ Army. 
Costs 
[58]
Mrs Robinson has been partially successful in her appeal and to that extent she is entitled to a contribution to her costs and disbursements. I trust that the parties are able to agree on the quantum. If not, then the parties may file and serve memoranda. Mrs Robinson is to file and serve her memorandum within 10 working days and the Corporation is to file and serve its memorandum within a further 5 working days. 


Letter from the Corporation to Mrs Robinson's agent dated 14 August 2008. 
The Corporation accepts that if it is found that the Corporation had all information necessary in 1987 or 1989 then the issue of post incapacity earnings does not arise. 
At para 47 
At para 50 
Internal file note dated 13 June 1988 
Mr Tuiquereqere sought to place some weight on Dr Tait's letter of 18 April 1989 to the effect that Dr Tait did not suggest that Mrs Robinson was unfit to work from 24 March 1986. Dr Tait's involvement with Mrs Robinson predated March 1986 and furthermore it was not a matter on which he was being asked to comment. 
Internal file note dated 1 March 1989 
While was not immediately apparent from the letter Dr Tait was the Army Recruitment Doctor in the local area. 
Harris v ACC [2014] NZACC 326 

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