Gaskin v Accident Compensation Corporation [2020] NZCA 147 (6 May 2020)

Last Updated: 21 May 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA538/2019 [2020] NZCA 147

	BETWEEN	JANET GASKIN Applicant
	AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:	Brown and Gilbert JJ
Counsel:	A C Beck for Applicant F L Becroft for Respondent
Judgment: (On the papers)	6 May 2020 at 11.30 am

JUDGMENT OF THE COURT

The application for special leave to appeal is granted in respect of the following question of law:

Did the High Court Judge err in interpreting s 86(2) of the Accident Compensation Act 2001 as permitting a contemporaneous rather than a sequential consideration of the matters in s 86(2)(a) and (b)?
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] The applicant (Ms Gaskin) wishes to appeal from a judgment of the High Court dismissing an appeal from the District Court on two questions of law.^[1] Having been declined leave to appeal by the High Court, Ms Gaskin now applies under s 163 of the Accident Compensation Act 2001 (the Act) for special leave to appeal on questions of law. The respondent opposes the application.

Background

[2] In August 2013 Ms Gaskin injured her back while stacking goods on supermarket shelves in the course of her employment. Cover was granted by the respondent (ACC) for a work-related injury and Ms Gaskin received earnings related compensation while unable to continue with her work.
[3] Between June and October 2015 Aon Work, a contracted accredited provider of ACC services, undertook a vocational independence assessment of Ms Gaskin. It concluded that she was vocationally independent with the consequence that her weekly compensation would cease three months from that date.
[4] Ms Gaskin unsuccessfully sought a review of that decision. Her appeal against the reviewer’s decision was dismissed in a judgment of the District Court on 13 June 2017.^[2] Her application to the District Court for leave to appeal to the High Court was declined.
[5] However on her application to the High Court for special leave to appeal from the District Court decision Cull J granted leave to appeal in the following terms:^[3]

[50] I am granting Ms Gaskin special leave to appeal. I consider there are two questions of law that this Court should address, namely:

(a) Did the Judge err in failing to take into account whether the statutory threshold test under s 110 of the Act had been met, before Ms Gaskin was referred for a vocational independence assessment?

(b) Did the Judge err in finding ACC complied with the legislative provisions on vocational rehabilitation for Ms Gaskin, in accordance with the Act and the applicable law?

The judgment of Dobson J on those two questions is the subject of the current application for special leave to appeal to this Court.

Questions of law

[6] Section 163 of the Act relevantly provides:

(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

(2) If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

[7] The threshold for the grant of special leave was explained by this Court in Cullen v ACC:^[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 67 Judicature Act 1908 apply equally to an application under s 163 of the Act. The Court will exercise this power if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.

(footnotes omitted)

[8] Contrary to normal practice, Ms Gaskin’s application for leave to the High Court to appeal to this Court by way of case stated did not provide any formulation of specific questions of law.^[5]
[9] Her application for leave filed in this Court was in essentially similar terms to that filed in the High Court. It stated:

3. The grounds on which leave is sought are that the decision is wrong in law in the following respects:

(a) The High Court erred in law by concluding that there was no error of law in the District Court decision.

(b) The High Court erred in law by substituting its own views for those of the District Court. The Court was not permitted to engage in a merits review but was required to determine whether the District Court had erred in law.

(c) The questions that arose in this case are whether the District Court failed to take into account whether the requirements of s 110 of the Act had been satisfied; whether the Court erred in finding that ACC had complied with the vocational rehabilitation provisions of the Act; and whether the Court had applied a correct approach on appeal.

(d) The High Court erroneously concluded that the District Court correctly applied s 110 of the Act:

1. The High Court wrongly discounted the evidence that the appellant was unable to maintain 3 hours per day on the basis of “other reports” that no further light duties were available. There were no such reports in evidence.
2. The High Court wrongly inferred that Mrs Gaskin was certified as fit for lighter duties for 30 hours per week. No such inference could reasonably be drawn from the evidence.

100. The District Court failed to undertake the appropriate analysis under s 110(3) as required by McGrath v ACC [2011] NZSC 77; [2011] 3 NZLR 733 (SC).

(e) The Court wrongly held that the District Court’s interpretation of the vocational rehabilitation provisions was correct:

1. The Court wrongly interpreted section 86 of the Act as allowing ACC an option to determine when and whether assessment of vocational rehabilitation needs is required.
2. The Court erred in holding that section 86(2)(a) and 86(2)(b) could operate concurrently.

100. The High Court appears to have assumed that an assessment of the appellant’s rehabilitation needs was undertaken under s 86(2)(b) of the Act. No such assessment was undertaken. Nor was any rehabilitation plan prepared evidencing what had been agreed regarding vocational rehabilitation. The Court wrongly held that the provisions of the section had been correctly applied.

4. The Court wrongly held that it was for the appellant to identify and request vocational rehabilitation.

(f) The High Court erred in law by failing to address or consider argument on the question as to whether the District Court had applied the correct standard of appellate review.

[10] Hence it has been necessary for the Court to identify the questions of law of the nature envisaged by s 163. There appear to be three possibilities:

(a) Did the High Court err in its consideration of the application of s 110?

(b) Did the High Court err in its interpretation of s 86?

(c) Did the High Court err in declining to entertain a new question of law?

We will consider each in turn.

The consideration of the application of s 110

[11] Section 110 of the Act provides:

Notice to claimant in relation to assessment of vocational independence

(1) The Corporation must give written notice to a claimant required by the Corporation to participate in an assessment of his or her vocational independence.

(2) The notice must—

(a) state the purpose, nature, and effect of the assessment; and

(b) state that the claimant is required to participate in the assessment; and

(c) state the consequences of not doing so; and

(d) state the claimant’s right to be accompanied by another person during the assessment.

(3) The Corporation must not require the claimant to participate in an assessment—

(a) unless the claimant is likely to achieve vocational independence; and

(b) until the claimant has completed any vocational rehabilitation that the Corporation was liable to provide under his or her individual rehabilitation plan.

[12] “Vocational independence” is defined in s 6 as meaning the capability to work for at least 30 hours per week.
[13] Mr Beck contends that the criteria in s 110(3) were not met. Proceeding from the footing that Judge Walker erred by failing to properly analyse and address s 110, Mr Beck submits that Dobson J attributed to Judge Walker reasoning which the Judge did not undertake and thereby erred by, in essence, “plugging the gap” by remedying the deficiency in the s 110 analysis rather than simply allowing the appeal. In the alternative he contends that if Dobson J was entitled to engage with the evidence, then His Honour erred by reaching a conclusion that it was “reasonable implicit” in the medical reports that Ms Gaskin was medically able to work for more than 30 hours per week.
[14] The ACC’s rejoinder is that the real question for the High Court was whether the District Court’s conclusion was open to it on the facts. That was the conclusion reached by Dobson J. It further contends that Mr Beck’s criticism of the medical assessment confuses the evidence that Ms Gaskin was unable to take up her previous role for more than a few hours with the reasonably clear assessment of the professionals that she would be capable of undertaking other lighter work.
[15] We consider that the comparative brevity of the District Court’s analysis had the consequence that it was difficult for Dobson J to reach a reasoned conclusion on the Judge’s approach to s 110 without repeating the analysis himself. This was compounded by the fact that the question on which special leave was granted was a mixed question of fact and law which, in the event, required considerable factual analysis. We do not consider there was an error of law by reason of the detailed analysis which the High Court Judge undertook.
[16] We also consider that the High Court’s conclusion, that the various reports recording that Ms Gaskin would be able to work as, for instance, a retail assistant brought with them a reasonably implicit conclusion that that would be for more than 30 hours per week, appears to be a reasonable inference. We do not consider there is an error of law in this respect and certainly not one that reaches the Cullen threshold.

The interpretation of s 86

[17] Section 85 of the Act states that ACC is liable to provide vocational rehabilitation to a claimant who has suffered personal injury for which he or she has cover and is, inter alia, entitled to weekly compensation. Section 86 then specifies matters that are to be considered in deciding whether to provide vocational rehabilitation. Section 86(2) states:

86 Matters to be considered in deciding whether to provide vocational rehabilitation

...

(2) In deciding what vocational rehabilitation is appropriate for the claimant to achieve the purpose of vocational rehabilitation under section 80,—

(a) the Corporation must consider whether it is reasonably practicable to return the claimant to the same employment in which the claimant was engaged, and with the employer who was employing the claimant, when the claimant’s incapacity commenced; and

(b) if it is not, the Corporation must consider the following matters:

(i) whether it is reasonably practicable to return the claimant to an employment of a different kind with that employer:

(ii) whether it is reasonably practicable to return the claimant to the employment in which the claimant was engaged when the claimant’s incapacity commenced, but with a different employer:

(iii) whether it is reasonably practicable to return the claimant to a different employment with a different employer, in which the claimant is able to use his or her experience, education, or training:

(iv) whether it is reasonably practicable to help the claimant use as many of his or her pre-injury skills as possible to obtain employment.

[18] Mr Beck contends that on the plain wording of s 86(2) and in particular the proviso “if it is not” in s 86(2)(b) requires the corporation to embark upon a strictly sequential process. He contends that there was an error on the part of the District Court Judge and Dobson J to conclude that the corporation could investigate options under both ss 2(a) and (b) simultaneously.
[19] ACC responds that the provision is not framed in strict sequential terms. It contends that in some cases it may be convenient to assess a claimant’s vocational rehabilitation needs for a return to their previous work and for new work simultaneously. Exploring both possibilities simultaneously does not necessarily mean the possibility of returning the claimant to work will be side-stepped.
[20] On this issue we consider that the application raises a reasonably arguable question of law concerning the interpretation of s 86(2). Furthermore it is an issue of general significance and is therefore of sufficient importance to outweigh the cost and delay of a further appeal.

Alleged failure to entertain additional argument

[21] Mr Beck complains that Dobson J refused to consider a third question of law that he attempted to raise, namely that the District Court erred by failing to adopt the correct standard of appellate review. It is apparent that Dobson J considered that Ms Gaskin had not been granted leave on that question and therefore chose not to hear argument on the point. It is Mr Beck’s contention that the High Court is in control of its own processes and that Dobson J erred by refusing to hear him on the point.
[22] It is plain in our view that Mr Beck did not have an entitlement to raise on appeal questions in respect of which leave had not been granted. To do so would significantly undermine the gatekeeping effect of the leave requirement.
[23] It is apparent that Dobson J considered that Mr Beck had not pointed to any special reason why he should be heard on an additional ground. We do not consider there is any reasonably arguable error of law in the Judge’s approach.

Result

[24] The application for special leave to appeal is granted in respect of the following question of law:

Did the High Court Judge err in interpreting s 86(2) of the Accident Compensation Act 2001 as permitting a contemporaneous rather than a sequential consideration of the matters in s 86(2)(a) and (b)?

Solicitors:
Hazel Armstrong Law, Wellington for Applicant
Medico Law, Auckland for Respondent

---

^[1] Gaskin v Accident Compensation Corporation [2019] NZHC 1530.

^[2] Gaskin v Accident Compensation Corporation [2017] NZACC 63.

^[3] Gaskin v Accident Compensation Corporation [2018] NZHC 3190.

^[4] Cullen v ACC [2014] NZCA 94.

^[5] By analogy with the requirement in relation to cases stated to the High Court as provided in r 21.6(c) of the High Court Rules 2016.