WILDBORE V ACC HC WN CIV-2007-485-496

WILDBORE V ACC HC WN CIV-2007-485-496 9 April 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2007-485-496BETWEEN PETER WILDBORE Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 7 April 2008 Appearances: A Beck for the Applicant A D Barnett for the Respondent Judgment: 9 April 2008 at 3.00pmRESERVED JUDGMENT OF CLIFFORD J Introduction[1] Mr Wildbore applies, under s 163 of the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the Act"), for leave to appeal to the Court of Appeal by way of case stated from a judgment I delivered on 22 November 2007. [2] With the leave of the District Court, Mr Wildbore had – under s 162 of the Act – appealed that Court's decision to uphold an earlier decision of a reviewer which found Mr Wildbore to be vocationally independent, thereby ending Mr Wildbore's entitlement to weekly compensation. [3] Leave to appeal to the High Court had been granted by the District Court with respect to a number of stated legal questions. As relevant for the purposes of this application, the principal legal issue involved, as expressed by the District Court, was whether by holding that the mandatory requirements of the legislation shouldnot be examined in a "mechanical and rigid way", but that they should be applied in a "common sense and holistic" way, the District Court Judge had erred. [4] In declining Mr Wildbore's appeal, I found that the District Court on an appeal from a reviewer should follow the approach set out in May v May (1982) 1 NZFLR 165, 170. I held further that the guidelines laid down by the High Court inRamsay v ACC [2004] NZAR 1 continued to apply as regards the approach by ACC and the Courts to the question of the assessment of a claimant's vocational independence. [5] In making this application, Mr Beck submitted that I was wrong to conclude that the approach set out in May v May should apply when the District Court is considering a decision of a reviewer on a question of vocational independence. Mr Beck based his argument on Alex Harvey Industries Ltd v CIR (2001) 15 PRNZ 361 (CA), Elwood v ACC (2007) NZR 205, Housing NZ Corporation v District Court at Auckland 1/11/07, Winkelman J, HC AK CIV-2006-404-7184 and Austin, Nichols & Co v Stitchins Lodestar [2007] NZSC 103. His essential point was that as the reviewer's decision was not a discretionary one, and as an applicant's appeal was to be heard by way of rehearing, the District Court was required to make its own decision on all the evidence before it. [6] For ACC, Mr Barnett did not support my finding as to the applicability of theMay v May principles. Rather, his submission was essentially that when the actual decision made by the District Court Judge was examined, none of the legal questions raised by Mr Beck are or were determinative of the outcome arrived at. The District Court Judge had, Mr Barnett submitted, considered the evidence and reached his own conclusion. Mr Barnett referred me to [99] to [102] of the Judge's decision. Moreover, Mr Barnett noted, this was the conclusion I had also reached in my decision. Accordingly, this was not a case where it was appropriate for special leave to appeal to be given. [7] I adopt the approach taken by Randerson J in Knight v ACC 6/4/06 HC CHCH CIV-2005-485-1582 to the question of whether special leave should be allowed. There Randerson J laid down the test at [18] as:The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, or of sufficient importance to outweigh the cost and delay of a further appeal.[8] I am well aware, as Mr Barnett submitted, that any appeal to the Court of Appeal constitutes a third layer of appeal, and therefore that the grant of special leave needs to be approached with care. I also accept that, as I analysed matters in my decision, I found that the District Court had discharged – to the extent I considered necessary – its responsibility to reconsider the reviewer's decision and in doing so had reached its own conclusion. On that basis, it could be concluded that a grant of special leave was not appropriate. [9] At the same time I now recognise, based on Mr Beck's submissions – which as I have noted Mr Barnett did not really oppose, that the question of whether I was right to conclude that the May v May approach was to be applied is very much one capable of bona fide and serious argument. [10] I also consider there is sufficient interest, public and private, in this question to outweigh the cost and delay of a further appeal. Assessments of vocational independence are an important aspect of the ACC scheme, and so also therefore is the question of the approach to be taken by the District Court to appeals against reviewers' decisions on those matters. [11] I also accept Mr Beck's submission that, even if the District Court Judge did reach his own conclusion based on the evidence, it is nevertheless important that he did so within the correct legal framework. Equally, it is important that I reviewed his decision using the correct legal framework. [12] I therefore conclude it is appropriate that special leave be given to appeal my decision, holding the May v May approach applicable, to the Court of Appeal. [13] Mr Wildbore also seeks special leave to appeal my decision that the guidelines set out in Ramsay were correct. In doing so, he suggested that I held that:a) those guidelines permitted the District Court to disregard the evidence of an expert witness without giving reasons, referring to my judgment at [37]; and b) following those guidelines, the District Court was not required to make its own assessment of all the evidence before it, referring to my judgment at [39]. [14] As regards this aspect of Mr Beck's application, I note first that I do not, with respect, agree with the way Mr Beck characterised my findings. [15] At [37] I did not find that the Ramsay guidelines permitted the District Court to disregard the evidence of an expert witness without giving reasons. I did hold that the principles distilled by Hansen J at [52] of Ramsay were still applicable, and summarised those principles. I went on, at [38], to record the outcome of the Judge's consideration of the medical assessment and the competing medical opinion. [16] Furthermore, at [39] I did not find that the Court was not required to make its own assessment of all the evidence before it. What I said was that it was not for the Judge to assess for himself the relationship between the applicant's pain and his ability to work increased hours. That was, I considered, a task for the medical assessor. What the Judge is required to do is assess the evidence constituted by the medical assessor's assessment of the relationship between the applicant's pain and his ability to work increased hours. [17] Furthermore, in Mr Wildbore's appeal to this Court he did not suggest that the guidelines set out in Ramsay were wrong. On the contrary, he relied on those guidelines. For example, in his written submissions Mr Beck, referring to [57] ofRamsay, submitted as follows:As required in Ramsay v ACC [2004] NZAR 1, there was "clear and cogent evidence" to show that the conclusion reached by Dr Kerr was wrong. Judge Cadenhead erred in law either by failing to take this evidence into account, or by reaching conclusions that were inconsistent with the evidence.[18] On that basis, therefore, I do not consider it appropriate that special leave be given to appeal to the Court of Appeal as regards the "correctness" of the Ramsayguidelines.[19] Mr Beck also applied for leave to consider the question of whether it was correct to interpret compliance with the mandatory requirements of the Accident Compensation legislation in a "common sense and holistic" manner. In my decision, I think I made it reasonably clear, at [26], that I did not consider that to be the correct approach. Accordingly I decline leave as regards that question of law. [20] Accordingly, leave to appeal to the Court of Appeal is granted on the following questions of law: a) What is the correct approach for the District Court to follow in determining an appeal under s 145 of the Injury Prevention, Rehabilitation and Compensation Insurance Act 2001 against a determination of vocational independence? b) Did the District Court follow the correct approach in its decision on Mr Wildbore's appeal? [21] A case stated should now be prepared and submitted to me with respect to the two questions on which I have granted special leave."Clifford J"Solicitors: Peter Sara, Dunedin for the Appellant A D Barnett, P O Box 3058, Wellington for the Respondent