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Accident Compensation Cases

Estate of Christopher Bradshaw v Accident Compensation Corporation (DC, 04/05/18)

Judgment Text

JUDGMENT OF JUDGE K D KELLY Leave to Appeal s 162 Accident Compensation Act 2001 
Judge K D Kelly
[1]
This is an application for leave to appeal a judgment of Judge N Mathers delivered on 26 May 2017. 
District Court Judgment 
[2]
The issue for determination in the appeal was when the applicant's entitlement to interest arose in respect of an arrears payment of weekly compensation made in March 2006. 
[3]
For the purposes of s 114 of the Act, ACC decided that the date upon which it had “all information necessary” to enable it to calculate and make the payment of weekly compensation was 18 July 2015, being the date of a report from Dr Birchall. This decision was upheld by the reviewer, and on appeal, by Judge Mathers. 
[4]
On appeal, the applicant relied on three alternative dates for the basis of the claim for interest namely: 
a)
1 July 1992 — being the date from which interest was legitimately possible in relation to cover being accepted from 1990; 
b)
11 September 1997 — being the date that the applicant submitted ACC is deemed to have known of weekly compensation through the payment of WINZ benefits; and 
c)
2003 — being the date when the applicant approached ACC seeking cover after having his initial 1990 claim declined. 
[5]
Her Honour did not find 2003 to be an appropriate date as the 2003 approach by the applicant was treated as a late review which related back to the 1990 claim. Nor did Her Honour find 11 September 1997 to be an appropriate date on the basis that she did not accept the deeming provision in s 252(6) of the Act extended to “cover” but that it only applied to WINZ benefits. 
[6]
That left only 1 July 1992. In respect of this date, however, because the ACC file had been destroyed years after the claim was closed in 1990, it was not known what information was held at that time or whether more information should have been sought. Her Honour determined that inferences could not be drawn about what information ACC had at that time because, in reality, it is simply unknown. 
Application for leave to appeal 
[7]
Section 162 of the Act provides that an applicant is entitled to appeal to the High Court on questions of law. The questions of law must be capable of bona fide and serious argument1
| X |Footnote: 1
Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation (wellington High Court, 6/7/2001, AP266/00, Doogue J at [4]-[9]. 
[8]
Mr Forster for the applicant has filed detailed and lengthy submissions in support of his application. In essence, Mr Forster says that the central question of law that ought to have been determined is how s 114 applies in situations like this, where there is an absence of evidence as to what ACC knew in 1992 because the relevant files had been destroyed. 
[9]
In essence, Mr Forster submits that this question remains extant because Judge Mathers erred by: 
i)
failing to conduct the appeal by way of rehearing: 
ii)
treating the appellant's case as turning on a question of fact when the appeal was made on a matter of law; 
iii)
failing to address the evidence; and 
iv)
making errors in her reasoning as a result of the absence of evidence. 
[10]
In respect of Judge Mathers not conducting the hearing as a rehearing, Mr Forster says this is not of central importance but goes to the broader public interest in proceeding to appeal. 
[11]
The applicant's main contention is that Judge Mather's judgment does not answer the question about how Parliament envisaged s 114 of the Act to apply in a situation where there is not enough evidence to make a finding of fact, against either ACC or the claimant. Put another way, did Parliament intend a claimant to be deprived of compensatory interest in such circumstances? 
[12]
In terms of addressing the evidence, Mr Forster submits that there is uncertainty around the law that and Judge Mathers failed to address evidence that supported an inference or a finding, on the balance of probabilities, that the s 114 test was met from the point that interest became payable in July 1992. 
[13]
Related to this, Mr Forster submits that Judge Mathers did not articulate her reasons for electing not to deal with the appellants arguments which attempted to reconcile a complex body of law and principle, including the construction of s 252(6), the adoption of Bailey2
| X |Footnote: 2
Bailey v ACC [2016] NZHC 1277Has Litigation History which is not known to be negative[Blue]  
, the application of the four scenarios in Miller3
| X |Footnote: 3
Miller v ACC [2013] NZCA 141Has Litigation History which is not known to be negative[Blue]  
and the question of spoliation. 
[14]
The applicant suggests the following questions for appeal (subject to any amendment by the High Court): 
i.
Did the District Court correctly interpret and apply s 114 to the appellants case? 
ii.
Did the District Court correctly interpret and apply s 252(6) to the appellants case? 
iii.
Was the interpretation in Bailey open to the District Court? 
Respondent's submissions 
[15]
ACC submits that Judge Mathers identified the three alternative dates for the applicant and disposed of the 1997 and 2003 dates as having no merit. In terms of the 1992 date, ACC submits that Judge Mathers dealt with this as an evidential issue in the context of s 114. Not being satisfied that the evidence was such as to allow her to draw inferences, Judge Mathers was not prepared to embark on a speculative exercise. 
[16]
It is submitted by ACC that the multiple arguments and inferences advanced by Mr Forster for the appellant did not require considerable discussion by the Court. 
[17]
ACC accepts that questions (i) and (ii) proposed by the applicant involve questions of law but submits they have no prospect of success in the High Court. 
Analysis 
[18]
As Judge Mathers said in her judgment, this claim has become unnecessarily complicated. The question in issue is on what date did ACC have “all information necessary” to enable it to calculate and make the payment of weekly compensation. This is a question of fact. 
[19]
Three dates were proposed by the applicant in the alterative. Judge Mathers considered the requirements of s 114 as evident from paragraph [28] where she said: 
“In the end, and whatever approach I follow, I must consider the requirements of s 114. ”
[20]
It is also clear that Judge Mathers considered the arguments of Mr Forster relating to the absence of evidence due to the destruction of files, including the question of onus, saying at [28]: 
“Even accepting for the purposes or argument Mr Forster's arguments as to onus in relation to the destruction of the file and the claimed prejudice to an appellant, I have real difficulty in making the jump so to speak to draw the inferences sought upon what in reality is simply factually unknown. ”
[21]
That is, Judge Mathers found that regardless of what approach is taken to s 114, there remains no factual evidence to support a 1 July 1992 date. 
[22]
While the application of Bailey involves a question of law, that relates to the correct interpretation of s 114, that was recognised by Judge Mathers where she said at [22] that: 
“Should this Court not accept that Miller applies, Mr Forster submits that I should turn to the decision of Palmer J in Bailey v ACC. ”
[22]
The issue of the interpretation of s 252(6) also raises a potential question of law but the applicant's contention on appeal is that Judge Mathers did not articulate in her reasons a sufficiently principled basis for departing from Kirk4
| X |Footnote: 4
Kirk v ACC [2016] NZACC 48Has Cases Citing which are not known to be negative[Green]  
and Beveridge5
| X |Footnote: 5
Beveridge v ACC [2016] NZHC 511Has Litigation History which is not known to be negative[Blue]  
, which, the applicant says, has rendered the state of the law uncertain. 
[23]
The key point is that the decision of Judge Mathers did not turn on the construction of s 114, or 252(6) for that matter. The decision turned on the lack of evidence. As such, the facts of this application do not lend themselves to resolving the questions of law identified by the applicant. They are not capable of bona fide and serious argument given the facts of this case. 
Decision 
[24]
The application for leave to appeal to the High Court is dismissed. 


Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation (wellington High Court, 6/7/2001, AP266/00, Doogue J at [4]-[9]. 
Bailey v ACC [2016] NZHC 1277Has Litigation History which is not known to be negative[Blue]  
Miller v ACC [2013] NZCA 141Has Litigation History which is not known to be negative[Blue]  
Kirk v ACC [2016] NZACC 48Has Cases Citing which are not known to be negative[Green]  
Beveridge v ACC [2016] NZHC 511Has Litigation History which is not known to be negative[Blue]  

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