TONNER v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1400

TONNER v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1400 [19 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-2528[2019] NZHC 1400UNDER the ACCIDENT COMPENSATION ACT2001IN THE MATTER of an application for special leave to appealunder section 162 of the ActBETWEEN JOHN TONNERApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 5 June 2019Appearances: H Peart and P Schmidt for the ApplicantF Becroft for the RespondentJudgment: 19 June 2019JUDGMENT OF MUIR JThis judgment was delivered by me on Wednesday 19 June 2019 at 11.00 am.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:Solicitors:Schmidt & Peart Law, OnehungaMedico Law Limited, Grey Lynn[1] Introduction Mr Tonner seeks the special leave of the High Court to appealfrom a decision of Powell DCJ (as he then was).1 He does so having been declinedleave by Christiansen DCJ.2[2] He advances two questions of law which he submits are seriously arguable andin the public interest, namely:(a) Did ACC's assessment process and decision regarding the applicant'sretrospective incapacity comply with s 103 of the AccidentCompensation Act 2001 (the 2001 Act)?(b) Did the District Court err in law by not directing ACC to assess theapplicant under the correct law and procedure?[3] Both parties' submissions comprehensively addressed not only the principlesapplicable to an application for leave, but also the merits of the underlying appeal.That was inevitable, because of the requirement to show that an appeal has reasonableprospects of success if special leave is to be granted.3[4] Counsel agreed that in these circumstances the most efficient use of judicialtime would be for me to consider the application for leave and substantive appealtogether. That is how I intend to approach the judgment. Had I been required toconsider the application for leave on a stand alone basis I would have granted it on theestablished test. However, having now reflected fully on the substantive appeal, I amsatisfied that it should, in turn, be dismissed. My reasons follow.Background[5] On 1 August 1997 Mr Tonner, his wife, and their then five year old son wereinvolved in a serious head-on motor accident. All suffered significant injuries. Thelevel of trauma associated with the accident was exacerbated by a post-collision fire.1 Tonner v ACC [2018] NZACC 25.2 Tonner v ACC [2018] NZACC 166.3 Kenyon v ACC [2001] NZHC 1301 at [15].Thankfully all managed to escape from their vehicle. Mr Tonner was hospitalised forfive days with (among other things) a fractured sternum and collar bone.[6] At the time Mr Tonner was self-employed in a tiling business, which he ownedin partnership with business associate Mr Easton. Mrs Tonner also worked in thebusiness.[7] Between the date of the accident and 11 September 1997, Mr Tonner receivedweekly compensation. He then returned to work, where he remained untilapproximately 2007. He has been on a benefit since that time. He is now aged 70.[8] At review in 2013, he was granted cover for mental injury, being post-traumaticstress disorder (PTSD) and major depressive disorder, both arising out of (andbackdated to) the date of the accident. As a result, he sought retrospective weeklycompensation backdated to 12 September 1997 on the grounds that he had, since thattime, been continuously incapacitated by his injuries, including the mental injuries hesustained.[9] His application was declined on 12 February 2015, with that decision upheldon review. He then appealed to the District Court. He relied on the evidence submittedat the review hearing, together with additional statements from his wife (from whomhe has been separated for approximately 20 years) and Mr Easton. The thrust of thatadditional evidence was that although Mr Tonner had returned to work after theaccident, he had not been able to function at his pre-accident level as a result ofphysical impairment, but more importantly difficulties with concentration and mood.Mr Tonner therefore submitted that he was incapacitated in terms of s 103(2) of the2001 Act in that he was "unable, because of his personal injury to engage inemployment in which he was employed when he suffered the personal injury".[10] In terms of medical evidence, Mr Tonner relied on two reports. The first, byDr Chris Walls, was dated 10 September 2014 and was prepared for ACC. Dr Wallsis an occupational medicine specialist. He described Mr Tonner's pre-accidentemployment in brief terms and with limited detail, referencing commencement of thebusiness in 1991, and describing this as "a ceramic tile business which combinedwholesaling, retailing and contractual work (installation)". He concluded thatalthough intrusive symptoms of PTSD typically resolved over a period of six to ninemonths, this had not occurred with Mr Tonner. He said:Therefore I would accept Mr Tonner as being substantially engaged at workfrom 12 September at some efficiency (80%) and with decreasing involvementuntil 2007 (10 years).Over that period of time he would become increasingly dysfunctional I wouldhave assumed when interacting with the public, contractors, or in other areasof "stress".Therefore, in an entirely arbitrary manner and with the wisdom of hindsight Iwould suggest 80% engagement for 3 years (1997 until 2000), 60%engagement for a further 3 years and 50% engagement for the last 5 years(before he ceased work).As far as I can determine from the information available to me he has beenunfit for work from 2007 and this relates directly to his PTSD and DepressiveDisorder.[emphasis added][11] The second report was from Dr Greg Finucane and was provided toMr Tonner's counsel on 2 September 2016. Dr Finucane concluded that Mr Tonnerwas: most likely to have been unable to fully engage in his pre-injuryemployment. There would have been a contribution from all of the abovefactors. Not all of his occupational incapacity would have been accidentrelated, but this would have been plausibly 50% even if his alcohol misuseaccounted for the other 50%.[12] Before the District Court, the sole issue was the adequacy of the evidence toestablish that Mr Tonner had been continuously incapacitated since his accident on1 August 1997. It was not at that point argued that ACC's assessment process hadfailed to comply with s 103 of the 2001 Act. Accordingly, even if persuaded that suchassessment process was non-compliant, no criticism could be made of the DistrictCourt's approach. Nevertheless, the Corporation accepts the ability of Mr Tonner toadvance the new arguments referenced in [2] above.The legislative framework[13] The relevant provisions are ss 102 and 103 of the 2001 Act:102 Procedure in determining incapacity under section 103 or section105(1) The Corporation may determine any question under section 103 orsection 105 from time to time.(2) In determining any such question, the Corporation—(a) must consider an assessment undertaken by a medicalpractitioner or nurse practitioner; and(b) may obtain any professional, technical, specialised, or otheradvice from any person it considers appropriate.103 Corporation to determine incapacity of claimant who, at time ofpersonal injury, was earner, on unpaid parental leave, orrecuperating organ donor(1) The Corporation must determine under this section the incapacityof—(a) a claimant who was an earner at the time he or she sufferedthe personal injury:(b) a claimant who was on unpaid parental leave at the time he orshe suffered the personal injury:(c) a claimant who was within a payment period under theCompensation for Live Organ Donors Act 2016 at the time heor she suffered the personal injury.(2) The question that the Corporation must determine is whether theclaimant is unable, because of his or her personal injury, to engage inemployment in which he or she was employed when he or she sufferedthe personal injury.(3) If the answer under subsection (2) is that the claimant is unable toengage in such employment, the claimant is incapacitated foremployment.(4) The references in subsections (1) and (2) to a personal injury arereferences to a personal injury for which the person has cover underthis Act.(5) Subsection (4) is for the avoidance of doubt.[14] Section 162, in turn, provides that a party to a District Court appeal may, withthe leave of the District Court, appeal to the High Court on any question of law. Itfurther provides that if, as here, the District Court refuses leave, the High Court maygrant special leave to appeal.Grants of special leave[15] The jurisdiction is well-settled. In order to obtain special leave, an applicantmust identify an error of law that is capable of bona fide and serious argument. Thequestion must also be of sufficient public or private interest to outweigh the costs anddelay of further appeal. As Collins J observed in Matthews v ACC:4That is unlikely to be the case where questions of fact are merely dressed upas questions of law.[16] There must also typically be a reasonable prospect of success on appeal.[17] Because of the approach adopted by the parties (and referenced to in [4]above), it is unnecessary for me to discuss the test further. It is, however, worthemphasising that the s 162 jurisdiction is confined to appeals on questions of law.Such questions may extend to the decision maker's treatment of facts, but only inlimited circumstances, namely, where there is no evidence to support the decision, theevidence is inconsistent with and contradictory of a decision, or the true and onlyreasonable conclusion on the evidence contradicts the decision.5 As I will indicate,the limitations on elevating errors of fact to those of law assume some significance inthis case.The District Court's decision[18] Having identified the relevant test under s 103(2) and (3) of the 2001 Act,Powell DCJ highlighted the particular issues that arose in relation to Mr Tonner'sretrospective claim. It cited Judge Cadenhead's observations in Jamieson v AccidentCompensation Corporation:6(i) It is upon the appellant to show on a balance of probability that at thedate of the alleged incapacity, because of the injury for which he hadcover, he was incapacitated within the terms of the Statute.(ii) Retrospective certification of incapacity will be acceptable in certaincircumstances. However, the onus is on the claimant to provideevidence establishing a clear picture, or strong and supporting4 Matthews v ACC [2018] NZHC 2769.5 Edwards v Bairstow [1995] 3 ALLER 48; Taffi v Minister of Immigration [2013] NZAR 1037(HC) at [19].6 Jamieson v Accident Compensation Corporation [2004] NZACC 80 at [30].evidence other than contemporary medical certificates of a continuingincapacity over the period in question.[19] He went on to note that Mr Tonner was self-employed and that his status assuch raised particular issues. He referred to the recent High Court decision in Crothersv Accident Compensation Corporation,7 in which Williams J approved the reasonableadaptation test on which Judge Ongley had relied in the decision under appeal. Suchtest had been expressed in terms, not of whether the applicant was substantially ableto perform his pre-injury tasks, but whether he was able to continue his business (inthat case farming) with reasonable adaptation – a test which Judge Ongley held mightinvolve exchanging some work tasks with employees or family members who wereavailable for the work and Mr Crothers confining his work on the farm's steeper terrainto better weather conditions.[20] Powell DCJ cited extensively from Williams J's decision on that appeal,including his conclusion that:8I consider that the reasonable adaptation test requires the assessor to:(a) identify the core tasks of the self-employed category – here, sheep andbeef farming on mixed flat and steep hill country; and(b) assess whether those core tasks (all of them) can be done with areasonable adaptation.[21] Against this background, Powell DCJ considered that to accurately determinewhether Mr Tonner was continuously incapacitated required:9 a detailed understanding of what Mr Tonner's pre-injury employmententailed coupled with a similarly detailed understanding of what he was thenable to do when he returned to work, as well as a detailed understanding ofthe nature of the business so as to determine whether if there were tasks thatMr Tonner could no longer undertake, these could be done by reasonableadaptation.[22] His Honour then reviewed the evidence of Mr and Mrs Tonner and Mr Easton,concluding that it failed to provide a detailed or clear picture of Mr Tonner's7 Crothers v Accident Compensation Corporation [2017] NZHC 259.8 An application for leave to appeal Williams J's conclusions on the testing capacity in the case ofself-employed claimants was subsequently dismissed [2017] NZHC 1952 per Thomas J, as was asubsequent application for special leave (ACC v Crothers [2018] NZCA 35).9 District Court decision at [16].employment tasks pre-injury, or exactly what part of those tasks he was not able to dowhen he returned, let alone any detail on how the business may or may not have beenre-organised to accommodate any issues arising from the accident, and whether or notthis amounted to reasonable adaptation.10[23] His Honour then turned to the reports by Dr Walls and Mr Finucane. He wasclearly sympathetic to the Corporation's decision to reject Dr Walls' report. He saidit lacked any foundation for the conclusion on incapacity and that this was reflected inwhat Dr Walls himself acknowledged was "an entirely arbitrary" assessment. Heconsidered that there were similar problems with Dr Finucane's assessment, becausehis conclusion about impaired function following the accident was based onMr Tonner's self-description (communicated through his solicitor).11[24] In respect of the evidence relied on by Mr Tonner, his Honour's overallconclusion was that it did not provide:12 anywhere near a suitable foundation for determining Mr Tonner wascontinuously incapacitated in terms of the questions set out in s 103(2) of theAct.[25] His Honour then went on to say that this conclusion accorded with the broaderevidence before the Court on the appeal. Although he accepted that Mr Tonner didseek treatment for a range of psychological issues at various times after the accident,and that these almost certainly related to the mental injuries for which he had cover,this broader evidence did not support a conclusion that Mr Tonner was continuouslyincapacitated following the accident. He referred in this context to three medicalreports obtained in the period 1999 to 2006.(a) The first was from psychologist Mr Taylor. He said that Mr Tonnerpresented with a "complex mix of acute mood disorder, post-traumaticstress disorder, and chronic pain syndrome", but, as his Honour10 At [19].11 Dr Finucane's report (addressed to Mr Peart) included the observation "your description is that hewas never as capable of running the business as he had been prior to the accident, relied on othersfor the day to day running of the business, this became less successful, he stopped working in2007, going on to a sickness benefit".12 District Court's decision at [24].observed, there was no suggestion in the report that Mr Tonner wasincapacitated. On the contrary, Mr Taylor noted that Mr Tonner had"cancelled a subsequent appointment because of businesscommitments" and that no further treatment was sought.(b) The second was a comprehensive assessment undertaken in 2005 bypsychologist Mr Barry Kirker. He noted that Mr Tonner "is workingfull time in his own retail tile business". Although he also noted thatMr Tonner's current mental state and behaviour were impacting on thebusiness as a result of customer abuse and neglect of his accounts, thereport nowhere suggests that Mr Tonner was unable to continueworking in the business (a point emphasised by his Honour).(c) The third report was in 2006 and was from Mr James Webb, a clinicalpsychologist and neuropsychologist. He also observed that Mr Tonnerhad been "in continuous self-employment since returning to work". Herecorded Mr Tonner's self-assessment that he became aggressive andhad difficulty communicating with people. He noted "he worksfulltime as a self-employed tiler" and stated that Mr Tonner assessedhimself as coping adequately until and unless problems occur. Hisconclusion was that Mr Tonner's attention and concentration abilitieswere intact and normal but that he was nonetheless suffering from anuntreated depressive disorder complicated by alcohol abuse.[26] Powell DCJ further noted that even though Mr Tonner had stopped work in2007, there was initially no suggestion of incapacity. Indeed, the first such referencewas in 2011. The Judge observed that this was consistent with the practice records ofMr Tonner's GP who, in the period 2001 to 2003, recorded four individual injuries forwhich the Corporation provided cover, but with no suggestion that there was anyunderlying problem impacting generally on his ability to work.[27] Finally, the Court noted what it described as a "dearth of information"regarding Mr Tonner's tiling business generally.13 His Honour said that while a single13 At [35].page of figures had been provided purporting to show significantly diminishingpartnership income from 1997 to 2010, this fell "far short of providing any support forMr Tonner having been continuously incapacitated following the accident" for reasonsthe Court then set out.[28] His Honour's conclusion was expressed as follows:[36] Looking then at the evidence overall I am satisfied that theCorporation was correct in concluding there was insufficient information uponwhich it could determine that Mr Tonner was continuously incapacitatedfollowing his accident in August 1997. Instead the contemporary evidenceavailable supports the conclusion that Mr Tonner was not continuouslyincapacitated following his accident and as a result the appeal must bedismissed.The application for leave in the District Court[29] The application for leave to appeal:(a) challenged whether the reasonable adaptation test from Crothers wascorrect;14(b) claimed that Powell DCJ had erred in his assessment of the evidence;and(c) claimed that he had erred in law "when finding that there wasinsufficient information to determine the applicable legal test underss 102 and 103 of the 2001 Act and Crothers v Accident CompensationCorporation, yet not finding (or addressing) that ACC itself had notmet the minimum requirements under the Act when making thedecision under appeal before His Honour."[30] This final point can be considered the genesis of the arguments advancedbefore me.14 Crothers v Accident Compensation Corporation [2017] NZHC 259. This argument was notmaintained in this Court.[31] In relation to the application for leave, Christiansen DCJ held that the DistrictCourt had:(a) Articulated the correct test.(b) Comprehensively summarised the evidence.(c) Identified reasons for its conclusion about a lack of contemporaneoussupport for any form of incapacity.(d) Made its assessment in the context of a retrospective claim, where theonus on the claimant was to establish a clear picture of continuingincapacity.(e) Determined that there was insufficient evidence to concluderetrospectively that the applicant had been incapacitated for more than15 years.(f) Had not relied on the reasonable adaptation test, but instead concludedthere was insufficient evidence to support claims of incapacity for thatperiod, noting that the applicant continued to work until 2007 in hispre-accident employment.[32] Accordingly, the application was dismissed. Because of the approach I haveadopted to the combined assessment of leave and the substantive appeal, it is notnecessary for me to discuss the District Court's lead decision further.The arguments[33] Central to Mr Peart's case, on behalf of Mr Tonner, was Williams J'sconclusion in Crothers that, in any case involving the incapacity of a self-employedperson, there is an obligation on the part of ACC to first identify the core tasks of theself-employment category and then to assess whether all of these could be done withreasonable adaptation. He emphasised the Corporation's obligation unders 102(2)(ii)(a) to consider an assessment by a medical or nurse practitioner in respectof the matters addressed in s 103(2), namely, whether the claimant was unable,because of personal injury, to engage in his/her former employment.[34] While conceding that the Corporation was not obliged to accept suchassessment, he said it would be in breach of its obligations if it omitted to obtain astatutorily compliant report and that the starting point for any such report wasidentification of the core pre-accident tasks. To the extent that Dr Walls' report hadfailed to do so, he submitted that this was a Corporation responsibility and that theCorporation needed to make further inquiry, emphasising that in terms of s 102(2)(b)it was entitled to seek reports from any person it considered appropriate.[35] He submitted, therefore, that Powell DCJ's emphasis on the deficiencies inDr Walls' report and other evidence produced by the claimant was misplaced. TheCorporation, he said, had not done its job. The District Court Judge should havereferred the matter back to the ACC for the statutory exercise to be undertakenproperly and its failure to do so amounted to an error of law. He emphasised that theCorporation has no discretion to decide whether to make a determination aboutincapacity, relying on the observation in Crothers v ACC that:15Section 103(2) is plainly not discretionary. Its terms are mandatory and . aclaimant either has incapacity under s 103 or has not.[36] In summary, his submission was therefore that there never had been a validassessment and decision in respect of the applicant's claim for weekly compensation,because ACC had not complied with the mandatory statutory requirements of s 103(2).[37] By way of factual context to that submission, he provided a chronology of allthe references in the medical notes between 1997 and 2005 to Mr Tonner's mentalhealth problems. Twelve separate mentions were identified including a 1998 referenceto his being very angry and confused and wanting to know if "ACC could fundsomeone to work for he" (sic), and recurrent references to mood swings, angeroutbursts, insomnia and depression.15 At [31].[38] In respect of remedy, Mr Peart invited remission of the case directly to theCorporation under High Court Rule 20.19(1)(c), for it to issue a new decisionregarding Mr Tonner's claim for weekly compensation entitlements. He submittedthis was the appropriate course if this Court accepted that the legislation had not beenapplied as required (relying on KF v Accident Compensaation Corporation andMcKeefry v Accident Compensation Corporation).16[39] For the Corporation, Ms Becroft advanced a straightforward argument.Although acknowledging the medical record described some intermittent symptomsof mental health problems, she said that there was simply no evidence of incapacity"at all" in the period 1997 to 2007.17 She submitted that the District Court's factualfinding that there was insufficient information upon which it could determine that MrTonner was continuously incapacitated following the accident was decisive, even ifthere had been any process failure (which she denied).[40] She submitted that, whatever conclusion was reached (either on the presentevidence or after further inquiry) about the nature of Mr Tonner's pre-accident tasks,the result would always be the same, because of the absence of contemporaneousevidence of incapacity. And she said that, beyond there being an absence of evidence,Powell DCJ had correctly identified that all the contemporary reports in fact supportedonly one conclusion – that Mr Tonner was not continuously incapacitated. Shesubmitted that despite the reality that Mr Tonner was in continuous fulltimeemployment over the period, and indeed described himself in 2006 as generally copingadequately with the demands of his work, he was now arguing that the matter revertto the Corporation for what could only ever be an "academic" assessment of pre-injurytasks.[41] In short, she submitted that, viewed in its totality, the evidence of an absenceof incapacity was so compelling that the claim could never succeed with or withoutthe additional information now said to be necessary. She said it was for the samereason that the Corporation dismissed Mr Walls' report. It had purported to make an16 KF v Accident Compensaation Corporation [2019] NZACC 10; McKeefry v AccidentCompensation Corporation [2019] NZHC 612.17 Discounting, of course, the period of acknowledged incapacity in the period immediately post-accident.arbitrary assessment of incapacity divorced from the reality of the contemporaneousevidence.Discussion[42] This case exemplifies the difficulties often associated with retrospective claimsunder s 103. Indeed, it is one of the more extreme examples, given that by the timethe claim was made, over 15 years had elapsed from the date of the accident and overfive years from the date on which Mr Tonner had ceased working. Two years prior tothe claim, his own psychiatrist Dr Kritzinger recorded in correspondenceacknowledging the likelihood of PTSD as a consequence of the accident, that:I think retrospective attribution of disability to his mental condition will bepart of an entirely different debate and may be very difficult to illuminategiven the time frame since the accident.[43] For this reason, the authorities have consistently identified that the onus is onsuch claimants to establish a clear picture of incapacity over the relevant period andthat, in such context, retrospective medical certificates will be treated with caution.18[44] A defining feature of many claims in this category is the absence ofcontemporaneous medical evidence confirming incapacitating injury or condition.Often there will be an attempt to infill that lacuna with retrospective medicalassessments and/or an applicant's personal affirmation of incapacity. It is the frequentrefrain of applicants that they are effectively penalised for stoicism in the face ofincapacitating injury or condition and for 'soldiering on" in their employment despitedisability.19[45] Farrelly v Accident Compensation Corporation20 is a recent appeal in thiscategory. It involved a self-employed forensic accountant who had suffered a backinjury in 2003. In 2007 he claimed that he had been incapacitated since that date,18 Jamieson v Accident Compensation Corporation [2004] NZACC 80 at [30]; Bell v AccidentCompensation Corporation [2011] NZACC 22.19 I accept, as Courtney J did in Jones v Accident Compensation Corporation [2013] NZHC 2458 at[19], that the concept of "soldiering on" is not a principle of law precluding a finding of incapacity.Rather, it is an evidential consideration. Some cases go so far as to suggest it raises an evidentialpresumption e.g. Parr v Accident Compensation Corporation [2012] NZACC 47.20 Farrelly v Accident Compensation Corporation [2016] NZHC 3153.notwithstanding the fact that he had continued to work through much of theintervening period. After an investigation, which has similarities to that undertaken inthe present case, he was denied weekly compensation on the basis of insufficientevidence of incapacity.[46] On appeal to the High Court, he argued that the District Court had improperlydismissed this self-assessment of incapacity and that the absence of contemporaneousevidence of incapacitating condition simply reflected his belief that the condition(chronic pain syndrome) was one he had to live with and one for which neither hisgeneral practitioner nor specialists were likely to be able to assist him. The decisionrecords ACC's submission (with which I agree) that the nature of the pain describedby the applicant could not be regarded as determinative because:21It is not the existence of the pain per se which constitutes an incapacity.Rather, it is the impact of the pain on the capacity of the sufferer to continuein his or her work.[47] Having set out the relevant provisions of s 102(2), Dobson J observed:[40] Arguably, in the absence of any medical reports from 2003 confirmingthat the impact of pain the applicant was suffering amounted to CPS thatincapacitated him from continuing with his previous work, the mandatoryobligation under s 102(2) could not be completed.[48] Ms Becroft emphasises this passage because she says it fairly recognises thevery practical difficulties which the Corporation often faces with retrospective claims– the more so with very lengthy periods of delay, as in this case. She also emphasisesthat Dobson J did not regard the arguable inability of the Corporation to comply withthe mandatory s 102(2) obligation as disqualifying its assessment.[49] Dobson J then discussed the evidence, concluding that there was no error inthe District Court's analysis of whether the applicant made out incapacity in thestatutory sense. He held:[45] no error arises if the Judge elects, in the circumstances of anyparticular case, that it is not appropriate to have regard to a claimant's owncharacterisation of his or her medical condition.21 Farrelly v Accident Compensation Corporation [2016] NZHC 3153, at [39].[50] Ms Becroft argues that the present case is even stronger from the Corporation'sperspective than Farrelly22 because, whereas Farrelly proceeded on the basis of anabsence of contemporaneous evidence of incapacity, the contemporaneous record inthis case persuasively establishes that there was no such incapacity.[51] Powell DCJ deals with this record in detail in his decision, referring to thereports of each of psychologists Mr Taylor, Mr Kirker, and Mr Webb in 1999, 2005,and 2006 respectively. All such reports identify Mr Tonner as in full-time andcontinuous self-employment in his tiling business. None suggest that he was unableto continue to do so. Mr Webb's 2006 report is of particular relevance, because itrecords Mr Tonner's own contemporary self-assessment, viz:He stated that he had worked continuously since returning to work 20 weeksafter the accident. He stated that he believes that he copes adequately with thedemands of his work until and unless problems occur in the work. At that timehe will withdraw from the job and hand responsibility to his partner.[52] Within the context of a test which focuses on inability to engage in pre-injuryemployment with reasonable adaptation, this represented a significant concession.Coupled with the unarguable evidence that Mr Tonner did, as a matter of fact, continueto work full time in his business for 10 years after the accident, I agree with Ms Becroftthat it was close to decisive. The position was then further fortified by the absence ofreference to an incapacitating mental illness in any of the GP reports from the early2000s.[53] In any event, I am, having regard to all evidence referred to, unable to say thatPowell DCJ's factual conclusion, that "Mr Tonner was not continuously incapacitatedfollowing the accident", was so seriously awry as to invite intervention by this Court.To the contrary, it was, as Christiansen DCJ held, a conclusion clearly available on thematerial before him. The fact that Dr Walls was driven to make what he described asan "entirely arbitrary assessment" of disability confirms that conclusion andultimately, therefore, why the Corporation was justified in rejecting the assessment.22 Farrelly v Accident Compensation Corporation [2016] NZHC 3153.[54] In reaching that point, I do not overlook the recent Court of Appeal decision inAccident Compensation Corporation v Terry23 on which Mr Peart particularly relies.[55] That case involved a retrospective incapacity determination under s 105 of theAct (the potential earner provision), rather than s 103. Mr Terry was a secondaryschool pupil who had suffered a serious spinal injury (a T12 fracture) in 2006. Hereceived initial support from the Corporation, following which he returned to schooland the file was closed. After he left school he lived a transient lifestyle, taking oddjobs but remaining largely unemployed. Three years after the accident he inquiredabout weekly compensation. The Corporation undertook an assessment andconcluded that he was incapacitated through to October 2008, but that he wasthereafter capable of undertaking work to which he was suited.[56] Mr Peart emphasises the Court of Appeal's observation at [43] that: ACC may not be able to discharge its obligations when determining thequestion of incapacity under s 105(2) without a very thorough assessment ofwhether a claimant is no longer incapacitated. Specialised occupational andmedical reports may well be required to assess whether a claimant is able toengage in work for which that person would be suited.[57] But the Court also emphasised that every retrospective claim will turn on itsown facts and circumstances.24 What may in one case require specialised occupationaltherapist reports will not in another. In Terry, for example, the mechanical severity ofthe injury was such that it almost self-evidently resulted in incapacity beyond the acutepost-accident period. An informed assessment could be made by a medicalpractitioner in terms of the effects the injury would have had. That is what occurred.By contrast, Mr Tonner did not suffer any necessary or self-evident incapacity afterthe acute period. Indeed, unlike Mr Terry, he returned to full time work. Moreover,the retrospective period for which Mr Terry sought entitlements was very much shorterthan the period here.[58] I accept that on the approach predicated in Crothers25 (including an assessmentof reasonable adaptability) there was a requirement on the part of the Corporation to23 Accident Compensation Corporation v Terry [2018] NZCA 585.24 At [43].25 Crothers v Accident Compensation Corporation [2017] NZHC 259.identify (as best possible) the core tasks of the self-employed person, and I agree withMr Peart that the mandatory medical or nurse practitioner's assessment unders 102(2)(a) is directed to the question in s 103(2), and that this cannot typically beanswered without such an understanding. Arguably, the brief discussion in Dr Walls'report did not provide an adequate foundation for such assessment. But whateverassessment was undertaken or which now, 22 years later, may be made, I agree withMs Becroft that Mr Tonner's case would still face exactly the same stumbling blockthat it did at the point his earner related claims were declined because, as the DistrictCourt found, the contemporary evidence did not adequately establish incapacity.[59] In the result, while I am prepared to answer the first question posed in terms"arguably so" I do not consider the District Court erred in law by not directing theCorporation to reassess the applicant.Result[60] I grant the application for leave in respect of questions 1 and 2.[61] I find that the District Court did not err in law in dismissing Mr Tonner's appealand therefore dismiss his appeal to this Court.[62] No application for costs has been made by the Corporation.[63] I thank counsel for the able arguments advanced by them both orally and inwriting.__________________________Muir J