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Accident Compensation Cases

Nicholl v Chief Executive of the Accident Rehabilitation & CompensationInsurance Corporation (HC, 01/03/00)

Judgment Text

Wild J
This is an application pursuant to s 97 Accident Rehabilitation and Compensation Insurance Act 1992 (“ARCIC Act”) for special leave to appeal to this Court against the decision of the District Court made on 28 January 1999 refusing leave to appeal to the High Court from a substantive decision of the District Court made on 21 November 1997. 
Accordingly, some 27 months have elapsed since the substantive decision, and 13 months since the leave decision. 
I emphasise that what is sought is special leave. It is discretionary and is not automatic, even where a question of law of some general importance is involved. In that respect I agree with what Morris J said in ARCIC v Ward December 1997, HC Auckland HC132/95. 
It is now common ground that there is no time limit under s 97. Tompkins J so held in ARCIC v ABC [1997] NZAR 1, and I agree. However, the length of delay in seeking leave, any explanation for that delay, and any prejudice resulting from the delay are relevant factors. 
Apart from categorising the appellant as a difficult client, Mr McGuire offers no explanation for the delay, and I assume there is none. On the other hand, counsel for the respondent (“ARCIC”) accepts that there is no prejudice to ARCIC, beyond the fact that it has closed away its files on this matter. 
The substantive decision sought to be appealed from is that of Judge Beattie. Relying on the decision of the full High Court (Gallen and Gendall JJ) in ARCIC v Allen 14.5.97 HC Wellington AP100/96, Beattie DCJ held that ARCIC was correct in applying s 54(14) by deducting from the appellant's assessment of total bodily disablement for the purposes of payment for an independence allowance, the percentage of disability for which the appellant had previously received lump sum compensation under s 78 Accident Compensation Act 1982. The arithmetic was 100%-13% = an independence allowance based on 87% disability. The Judge held that neither ARCIC nor the Court had any discretion, and what was involved was a statutory formula for calculation. He said: 
“The provisions of the statute are quite clear and indeed there is High Court authority as well as authority from this Court to the effect that there is no discretion given to the Corporation under section 54 and that the assessment is a simple mathematical calculation with the percentage disability previously allowed being deducted. ”
It was Judge Middleton who refused leave on 28 January 1999. He said: 
“The right to appeal to the High Court is provided by section 97 which states where any party is dissatisfied with arty decision of a District Court under this Act as being erroneous in point of law, that party may, with the leave of that District Court, appeal to the High Court. 
As I have said, the only issue before the Court was whether or not the respondent was correct in its application of section 54(14). The Court held that it was bound by the decision of the High Court in ARCIC v Allen, a judgment of Justice Gendall issued on 14 May 1997 under number AP 100/96. That judgment specifically determined the issue that the respondent must deduct from the assessment of permanent disability for the purposes of an independence allowance any percentage of permanent bodily disability previously compensated under the Accident Compensation Act 1982. 
Accordingly, I do not consider that there is a question of law which requires a determination by the High Court. The application for leave is therefore declined. ”
I note also that Judge Middleton commented that the appellant's submissions in support of his application for leave to appeal did not address the issue that is whether Judge Beattie's interpretation of s 54(14) was correct, but rather the appellant's perception of how unfairly he had been treated, particularly in relation to others such as injured criminals. 
The very issue having been authoritatively determined by a full High Court in May 1997, I consider Judge Middleton was correct to refuse leave to appeal to the High Court. The High Court is not, of course, bound by its own decision, but this was a reserved decision of a full High Court after hearing full argument, and one which was not appealed. 
Add to this the lengthy, unexplained delays in seeking leave, and this application becomes quite hopeless. I consider Judge Middleton was correct to refuse leave. 
In the course of argument this morning Mr McGuire apprised me for the first time of matters which I regard as very relevant to this application. On 1 July 1997 new sections 54 and 54A of the ARCIC Act came into force. The effect of those provisions and of regulations made under them was to substitute, for the previous subjective disability based assessment, an objective assessment based on the degree of impairment calculated in accordance with the American Medical Association Guides to Evaluation of Permanent Impairment, 4th Edition. The appellant was reassessed under that new assessment regime. The result was that his degree of impairment was reduced from 100% to 7%. Accordingly, and for two reasons, since being re-assessed the appellant has not been receiving an independence allowance. The first reason is that his newly assessed level of impairment falls below the 10% threshold in s 54(1). The second reason is that the percentage of disability for which the appellant had previously received lump sum compensation is still to be deducted. The new arithmetic is thus 7% - 13% = 0% i.e. no independence allowance. The consequences of this are that any monetary benefit to the appellant from success on appeal to this Court would be limited to the period 27 November 1996, when ARCIC originally assessed the appellant, to the ARCIC's re-assessment of the appellant's level of disability under the new regime, which will have been shortly after that new regime came into force on 1 July 1997. Counsel were unable to inform me this morning on what date precisely that occurred. Only a small and finite amount of money will be in issue. This situation, of which I was previously unaware, provides a further reason why special leave ought not to be granted. 
Special leave is refused. The application is dismissed. The respondent does not seek costs and there will accordingly be no order as to costs. 

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