Homes v Accident Compensation Corporation [2020] NZHC 3034 (17 November 2020)

Last Updated: 23 December 2020

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2020-485-571 [2020] NZHC 3034

UNDER	the Accident Compensation Act 2001
IN THE MATTER OF	an appeal under s 162 of the Act to the High Court on a question of law
BETWEEN	STEVEN HOMES Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

On the papers
Judgment:	17 November 2020

JUDGMENT OF MALLON J

• [1] Mr Homes suffered a traumatic brain injury on 5 January 1977 when he was 17 years old and about to undertake study at Otago University. He was discharged from hospital in July 1977. Over the ensuing years he undertook some studies and had some employment.

• [2] Following a request by his solicitors in 1984, in July 1985 ACC assessed Mr Homes to have a 28 per cent permanent loss of earning capacity with an effective date of 22 August 1982. In 1993 ACC assessed him as having permanent loss of earning capacity at 46 percent with an effective date of 15 July 1987. In 1997 that was increased to 50 per cent and backdated to 15 July 1987. On 10 June 2016 this was increased to 61 per cent and backdated to 15 July 1987. On 20 October 2016 an

HOMES v ACCIDENT COMPENSATION CORPORATION [2020] NZHC 3034 [17 November 2020]

application to review the 10 June 2016 decision was dismissed. On 20 May 2020 the District Court (Judge J H Walker) upheld the 20 October 2016 decision.¹

• [3] On 22 September 2020 the District Court (Judge G M Harrison) granted leave to appeal to the High Court.² It did so on the basis that ACC accepted Judge Walker had erred. Mr Homes then filed an appeal in this Court. The parties now seek orders by consent allowing the appeal and directing a rehearing in the District Court.

• [4] The parties agree that Judge Walker erred by applying s 114 of the Accident Compensation Act 1972 rather than s 60 of the Accident Compensation Act 1982. In accordance with Dean v Accident Compensation, the relevant legislation is that which was in force at the time ACC had jurisdiction to make the assessment, not the legislation in force at the time of the injury.³ The parties agree that s 60 of the 1982 Act applies because ACC made its first s 114 assessment in June 1984 and issued its first decision on Mr Homes’ incapacity in July 1985, both when the 1982 Act was in force. The Judge erroneously referred to an assessment in 1979 but this was for compensation for other non-economic loss. The parties also agree that the Judge did not give adequate reasons for finding that ACC had a rational and principled basis for the effective date that it chose.

• [5] I allow the appeal by consent on the basis that ACC first had jurisdiction to make the relevant assessment after the 1982 Act was in force and the Judge’s reasoning for upholding the effective date was limited and insufficient. I order that the District Court rehear the appeal before another Judge.

Mallon J

¹ Homes v Accident Compensation Corporation [2019] NZACC 61.

² Homes v Accident Compensation Corporation [2020] NZACC 130.

³ Dean v Accident Compensation [1982] NZCA 71; [1982] 1 NZLR 750 (CA).