CROTHERS v ACCIDENT COMPENSATION CORPORATION [2018] NZCA 35

CROTHERS v ACCIDENT COMPENSATION CORPORATION [2018] NZCA 35 [5 March 2018]IN THE COURT OF APPEAL OF NEW ZEALANDCA519/2017[2018] NZCA 35BETWEEN PAUL STANLEY CROTHERSApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 19 February 2018Court: Winkelmann, Asher and Clifford JJCounsel: A C Beck for ApplicantD A Laurenson QC and F Becroft for RespondentJudgment: 5 March 2018 at 10.30 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Asher J)Introduction[1] Paul Stanley Crothers is a self-employed sheep and beef farmer in Whanganui.In 2010 he suffered a serious injury to his left hand, which resulted in partialamputation of his ring finger and other injuries. He received cover under theAccident Compensation Act 2001 (the Act) for a period, but on 8 September 2011 theAccident Compensation Corporation (ACC) determined that he had regained capacityfor his pre-injury employment and was no longer entitled to weekly compensation (theCapacity Decision). This was formally recorded in a letter dated 4 April 2013.[2] Mr Crothers sought a review of the Capacity Decision, and another relateddecision refusing to pay the extra cost of purchasing an all-terrain farm bike (ATV)with power steering (the ATV Decision). He was unsuccessful. He then appealed tothe District Court, and then by leave to the High Court. He was unsuccessful in bothappeals.1 He now seeks leave to appeal the High Court decision of Williams J givenon 24 February 2017 on the basis that the appeal is wrong in law.2 The grounds onwhich leave is sought are:(a) The High Court adopted a different test for incapacity under s 103(2)of the Act from that which had been used in the District Court, but failedto refer the matter back to the District Court for determination inaccordance with that test.(b) There was no evidentiary basis for the High Court to make its owndetermination of the issues arising in the case.(c) The Court erred in holding that "reasonable adaptation" could includeengaging other persons to carry out tasks previously undertaken by theinjured person.[3] Mr Crothers seeks leave to appeal these issues to this Court under s 163(2) ofthe Act. Under s 163(1) of the Act, an unsuccessful party to the High Court decisionmust first apply to the High Court for leave to appeal to the Court of Appeal.Application was made to the High Court. In a decision of 16 August 2017, Thomas Jdeclined leave.31 Crothers v Accident Compensation Corp [2015] NZACC 10 [DC Decision]; and Crothers vAccident Compensation Corp [2017] NZHC 259 [HC Decision].2 HC Decision, above n 1.3 Crothers v Accident Compensation Corp [2017] NZHC 1952.[4] This Court has summarised the power to grant special leave under s 163(2):4[5] This Court has power to grant special leave to appeal under s 163(2)of the Act. The principles applicable to an application for leave under s 67Judicature Act 1908 apply equally to an application under s 163 of the Act.5The Court will exercise this power if satisfied that there is a serious questionof law capable of bona fide and serious argument in a case involving someinterest, public or private, of sufficient importance to outweigh the cost anddelay of a further appeal.6 Other relevant considerations include thedesirability of finality of litigation and the overall interests of justice.7 Theprimary focus is on whether the question of law is worthy of consideration.8(Original footnotes.)The issue[5] Section 103(2) of the Act provides:(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.[6] As at 8 September 2011, when the Capacity Decision was made, thesubstantive issue between Mr Crothers and ACC was whether ACC should fund thepurchase of a new ATV that, unlike his existing one, had power steering. The upgradewould enable him to use the ATV on steep back country. He argued that he could notadequately manoeuvre his existing ATV, which had no power steering, because of theweakness in his left hand that followed the accident. He relied on the view of an expert,Mr Morris, which was largely derived from Mr Crothers' own reporting, that indicateda significant loss of function in his left hand.[7] ACC did not consider that Mr Crothers needed an ATV with power steering.ACC relied on reports, in particular a report of a Dr Turner assessing Mr Crothers asbeing able to ride his ATV on the rough and steep terrain while avoiding over-reliance4 Cullen v Accident Compensation Corp [2014] NZCA 94 at [5].5 Knight v Accident Compensation Corp HC Christchurch CIV-2005-485-1582, 6 April 2006 at[18].6 Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance CorpHC Wellington AP266/00, 6 July 2001 at [4]; Khan v Accident Compensation Corp HC AucklandCIV-2007-485-1632, 14 August 2008 at [5]; Ellwood v Accident Compensation Corp [2012]NZHC 2887 at [10]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.7 Knight v Accident Compensation Corp, above n 5, at [18].8 Khan v Accident Compensation Corp, above n 6, at [5]; and Downer Construction(New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].on his left hand grip and scheduling work to avoid unsafe weather conditions. ACCdecided to not assist in the purchase of the upgraded ATV and issued a decision to thateffect on 8 September 2011. The Capacity Decision was made on the same day.[8] The Capacity Decision was upheld on review on 16 October 2013 (the ReviewDecision). Mr Crothers gave evidence at that hearing. In dismissing the applicationfor review the Reviewer quoted an email from Mr Crothers of 10 November 2011saying:I felt I could handle going back to normal work so long as I could upgrade myATV.It was held by the Reviewer:When I consider the evidence in its entirety I find all commentators/assessors,including Mr Crothers, agree that he was able substantially to engage in hisnormal employment.[9] The Review Decision was appealed to the District Court. Judge Ongleyconcluded that a reduced margin of safety did not necessarily lead to a determinationof incapacity for pre-injury employment, and "may have to be tolerated where themanner of work before injury already carried a degree of risk".9 He accepted ACC'sview that Mr Crothers was in effect able to engage in all aspects of his previous farmwork, with a degree of adjustment in relation to the rough terrain work commensuratewith his minor disability.10[10] Leave was granted to appeal that decision in the High Court on the followingquestion of law:11Do the words "engage in employment" as they appear in s 103(2) of the Actmean that the claimant must be able to undertake all the tasks of his or heremployment which he or she was able to carry out when he or she suffered thepersonal injury, or can a claimant be deemed not to be incapacitated even ifhe or she cannot undertake all such tasks?9 DC Decision, above n 1, at [34].10 At [25].11 Crothers v Accident Compensation Corporation [2015] NZACC 383.[11] In the High Court Williams J held that the correct test is one of "reasonableadaptation".12 The assessor must:13(a) identify the core tasks of the self-employment category — here sheepand beef farming on mixed flat and steep hill country; and(b) assess whether these core tasks (all of them) can be done withreasonable adaptation.Williams J found that this was effectively the test applied by Judge Ongley, even if theJudge did not express the test in those terms.14[12] We record that it is the Capacity Decision only that is at issue, and not the ATVDecision.Our decision[13] We do not consider that a question of law arises in the proposed appeal. Wesay this for two reasons.[14] First, there is no discernible difference between the tests applied in theDistrict Court and the High Court. Having traversed case law and legislative history,15Williams J specifically stated that he considered the test applied by Judge Ongley tothe facts to be correct.16 While the language he used was somewhat different fromthat used in the District Court, we do not consider he applied a test that was materiallydifferent from that of Judge Ongley. Moreover, Mr Beck for Mr Crothers did not arguethat Williams J was wrong in the approach he adopted to the specific issue ofMr Crothers' capacity.[15] Second, both decisions turned on factual findings and not upon the legal test.The Capacity Decision, the Review Decision and the appeal to the District Court alldealt with the question whether Mr Crothers could, as at 8 September 2011, resumehis previous work. Judge Ongley found that Mr Crothers' grip was still affected but,12 HC Decision, above n 1, at [50].13 At [51].14 At [59].15 At [39]–[49].16 At [50].using his existing ATV, he could return to his pre-injury employment. There weresome changes he would need to make as to his work practices, such as the need toavoid steep terrain in wet weather, but clearly these were not seen as significant.Judge Ongley said that the evidence showed that Mr Crothers could carry out hispre-injury work without taking an unreasonable or inappropriate risk of furtherinjury.17 He said that Mr Crothers was not impaired from working the steep country.Williams J agreed.18[16] The key factual finding was therefore that Mr Crothers was able to carry outthe core tasks of his pre-injury employment. There were also references by Mr Beckto the evidence showing that Mr Crothers's son commenced helping his father withfarm work, and that this had continued. However, the farm use has changed, andMr Crothers has got older. There is nothing to indicate that Mr Crothers' son is doingwork that Mr Crothers is incapable of doing because of the accident.[17] We acknowledge Mr Beck's submission that in the ACC context this Courtshould clarify important points of law when they arise. However, it is undesirable toclarify such points where the factual findings made below render the issue moot asbetween the parties. As we have said, we do not accept the argument that Williams Jdiffered from the District Court in his approach to capacity. More importantly, nothingwill turn on any possible difference, given the central factual finding, consistent withall of the previous decisions, that Mr Crothers had returned to capacity by8 September 2011.Result[18] The application for leave to appeal is declined.[19] Given the history of this matter and Mr Crothers' difficulties, and withoutopposition from ACC, costs will lie where they fall.Solicitors:17 DC Decision, above n 1, at [33].18 HC Decision, above n 1, at [59].John Miller Law, Wellington for ApplicantMedico Law Ltd, Grey Lynn for Respondent