DECISION. [1] The issue in this appeal is the relevant earnings figure for the appellant at the time of injury in September 1974.

Transcription

1 [2010] NZACA 10 ACA 06/08 IN THE MATTER of the Accident Compensation Act 1982 AND IN THE MATTER BETWEEN of an appeal pursuant to s.107 of the Act REGINALD MORGAN Appellant AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY P J Cartwright HEARING at AUCKLAND on 31 August 2010 APPEARANCES J Robinson as appellant s advocate Dane Tui for respondent DECISION [1] The issue in this appeal is the relevant earnings figure for the appellant at the time of injury in September Background [2] The appellant sustained major injuries in a motor vehicle accident on 1 September 1974 while working as a stock agent. [3] At the time of his injury the appellant was a salaried employee of Allied Farmers, working in excess of 40 hours per week. [4] The appellant s salary at the time was approximately $80 per week, plus a vehicle and free home telephone.

2 2 [5] The appellant was granted cover and had his weekly compensation calculated and paid to him by State Insurance under the Accident Compensation Act 1972 ( the 1972 Act ). [6] The appellant was unable to return to any form of work due to his leg injury. [7] His leg was finally amputated in early 1977 and he was paid a lump sum for the loss of his leg in late [8] The Corporation continued to pay weekly compensation at an incorrect rate up until 26 October 1978 when it stopped his compensation. [9] During the late 1970s the appellant, due to his lack of support from the Corporation, attempted to support his family by working when possible. [10] The appellant attempted work initially in a bottle store for two hours per week on a Saturday afternoon, but was only able to remain working for a short period due to problems with his stump when it connected to his artificial leg. [11] In the early 1980s, the appellant attempted to work at the Northern Wairoa Dairy Company full time but was forced, due to pain and complications with his artificial leg, to again stop work. [12] The appellant s last attempt to support his family was in when he worked part-time for Dargaville Bowling Club. [13] The appellant s wife, Mrs Morgan, who is the only person within the family capable of working, was forced, due to the family s financial needs, to obtain what work she could. [14] In the meantime Mrs Morgan had picked up part-time work with the high school and in about 1988 obtained full time work in the local rest home. [15] The appellant went on to superannuation on 26 June 1989 and was eligible for weekly compensation until 27 June [16] The appellant received no weekly compensation up until May 1990 when the Corporation paid some arrears but again stopped his weekly compensation from 14 June Relevant legislation [17] As the accident happened in 1974, the relevant legislation in this case is the Accident Compensation Act 1972, s.103(2)(a). [18] For the purposes of this Act, the expression earnings as an employee includes: (a) Any wages, salary, allowances (including allowances of any of the kinds referred to in s.89 of the Land and Income Tax Act 1954), holiday pay, over-time pay, long service leave pay, bonuses, gratuities, extra salary, commissions, directors fees, honoraria, emoluments, or any remuneration of any kind paid or payable (whether at piece rates or otherwise and

3 Relevant law 3 whether in case or otherwise) to any person in respect of or in relation to the employment of that person as an employee.... Lewis v ARCIC HC 149/1993. Blundell v ACC [1994] NZAR 1. [19] In Blundell v ACC (supra) Heron J noted the purpose of this section is:... concerned with compensating people based on their normal average weekly earnings, or alternatively, reasonable remuneration for services rendered to a company at the time of the accident. [20] This statement was cited by Barker J in Lewis v HC (supra). That case concerned whether the benefit to the claimant of his company car for private use should have been included in the calculation of his earnings. As indicated above, ACC has accepted the issue in this case as far as the private use of the company car is concerned. [21] Barker J noted that the use of a company car was often used as a component in an employee s remuneration package. The calculation of the value of that part of the package was something that was often done in assessing the value to an employee of working for the firm. As it was an additional benefit to the employee, it had to be taken into account by ACC in calculating the benefit payable under s.52. [22] When reviewing decisions by ACC in relation to the assessment of earnings related compensation, it is important to recognise that these are discretionary decisions. ACC has the discretion to determine what fair and reasonable compensation is. In Patel (3/04) the Appeal Authority stated: On well established principles as recognised by the Appeal Authority over the years the decision arising from the exercise of a discretion ought not to be overturned on appeal unless there has been some material oversight or error in principle when arriving at the decision. Submissions for the appellant [23] In his sworn statement of 30 April 2008 the appellant states at 5: My salary was approximately $80 per week plus a company vehicle (1.6 L Hilman Hunter) and a free telephone, plus a $2 a week expense allowance. [24] In her sworn statement Mrs Morgan verifies her husband s earnings at 4: My husband was earning about $80 per week and had a company car, free home, telephone and a very small expense allowance. [25] Mr Frank Colthurst, with a life long career in the stock agents industry, explains in his letter dated 17 April 2008 that the appellant s statement regarding his earnings was in line with the average paid at the time.

4 4 [26] Mr Brian Cates, in his affidavit of 24 April 2009, also confirms the appellant s basic salary as being approximately $4,000 per annum and makes reference to a branch memo from 1972 confirming a basic salary of $3,500 in [27] Stock agents positions are best described in the NZ Government Department of Labour Awards Publication dated 7 May 1974 as stock clerk iii page 222 which also helps to confirm the appellant s basic salary as being approximately $4,000. [28] A file note marked X highlights that the relevant earnings figure used for the appellant was $4, then crossed out to be $80.77 per week. 80 percent of $4, is $3, divided by 52 equals $64.62 per week. The payment figure on the payments list for 1 April 1975 is $64.88 per week. [29] It is believed that these figures clearly show that the appellant s relevant earnings figure at the time was solely based on his wages at the time and did not take into consideration his vehicle, telephone or expense allowance. Vehicle value for ERC purposes [30] The Corporation, in a recent review decision with regard to a historic claim where ACC had again failed to assess company vehicle etc formula was determined and accepted by the Corporation for assessing the value for ERC purposes. (1989): [a] [b] [c] [d] The cost of the vehicle plus annual licence, insurance and WoF; The interest rate at that time; Depreciation at percent; Running costs 15,000 km at 15.5 cents per kilometre. [31] In this case we have a direct reference as to the cost to Wrightsons Limited in the mid 1970s the cost to the company of a four cylinder car as being c/km. [32] This would identify the likely value declared for tax purposes as a benefit to the appellant of 15,000 multiplied by c/km or $2, based on the AA guide to average private use as 15,000 km. [33] As per the ACC technical information circular number T244 dated 14 June 1977, we find in paragraph 2 starting line 6, two words in the value of such benefit, for the purpose of assessing relevant earnings, is to be that amount which the employer negotiates with the Commissioner of IRD. [34] It stands to reason that the cost of cents per km would have come from financial accounts and costings for the company regarding vehicles. [35] The value to the appellant of free telephone connection is set out in the New Zealand Official Year Book 1974 as being $59.94 per year. [36] The appellant also had $2 a week expense allowance and this would total $104 per year.

5 5 [37] Therefore the appellant s relevant earnings for assessment of ERC should have been: [a] Salary $4, [b] Use of vehicle $2, [c] Free telephone $ [d] Expense account $ Total $6, [38] 80 percent being $5, or $98.50 per week. Submissions of counsel for respondent Issue [39] At issue is a late review application from a decision made by the Accident Compensation Corporation ( the Corporation ) in or about 1974 or 1975, calculating the appellant s earnings related compensation ( ERC ). [40] The physical file for the appellant s 1974 claim has been destroyed and therefore there are no records available regarding the decision made in or about 1974/75. The application for review was lodged in December The application identified a decision issued on 1/09/74, more than 30 years after the Corporation s primary decision would have been made. [41] In short, it is the respondent s submission that it is not possible to determine whether the Corporation s calculation was unreasonable. Any consideration now would be based entirely on speculation. For this reason counsel, Mr Tui, submitted that the appeal ought to be dismissed. Background (from perspective of respondent) available information [42] As stated above, the physical file for the 1974 claim has been destroyed. Up until relatively recently, there was very little information regarding the ACC payments made to the appellant for the period from [43] The contents of another ACC claim file have shed further light on events for the period after This file only came to the attention of the parties whilst this matter was on appeal. The background below incorporates the information contained in the 1980 claim file injury [44] The appellant suffered injuries on 1 September 1974 as a result of a motor vehicle accident. It appears that the appellant was then employed as a stock agent with Allied Farmers (i.e. buying and selling cattle). [45] The appellant applied for and received ERC over the next few years. His right leg was amputated below the right knee in [46] It appears that the appellant s ERC was stopped in or about 1978 [refer to letter from the appellant s GP dated 14 June 1993].

6 injury [47] The appellant suffered an injury on 28 April 1980 whilst working for Northern Wairoa Dairy Company. A claim for cover was lodged for this injury in May 1989 together with an application for ERC for the period from [48] The Corporation investigated the application, received medical and earnings information from, inter alia, the appellant s previous employers as well as the Inland Revenue Department ( IRD ). [49] In May 1990 the Corporation accepted that the appellant was entitled to ERC for the period from 5 May 1980 to 31 March An arrears payment was made that month. [50] On 2 August 1990 the Corporation wrote to the appellant to advise that it wished to confirm that we are unable to reassess your compensation any further until you have lodged your return of income for the year ending 31 March It appears that the Corporation was awaiting the earnings information for the period from 1 April 1987 before it could consider the payment of ERC after 1 April [51] In December 1992 the appellant contacted the Corporation seeking payment of ERC for the period from October [52] The Corporation wrote to the appellant on 15 December 1992 to advise him that he was not entitled to ERC as he was not in employment at the time of the incapacity. [53] The appellant completed an application for review form on 28 January 1993 from the decision dated 15 December [54] In February 1993 the appellant s then solicitors, Pegg Ayton Gordon, wrote to the Corporation in respect to the review proceedings. The solicitors noted that the Corporation was undertaking an internal review of the matter. [55] The Corporation subsequently received further earnings information from IRD as well as medical information from the appellant s general practitioner. [56] On 27 August 1993 Pegg Ayton Gordon wrote to the Corporation enclosing further historical medical information to assist with the Corporation s consideration of the matter. [57] On the basis of the additional information, the Corporation accepted that the appellant was entitled to arrears of ERC for the period from 1 April On 8 November 1993 the Corporation wrote to the appellant, care of the appellant s then solicitors, to advise the appellant of his entitlement to arrears of ERC for the period from 1 April [58] The backdated payments were made in March and April Application for interest [59] The next relevant development on the appellant s claim file was in late 2006.

7 7 [60] At this time the appellant s advocate, John Robinson, contacted the Corporation to enquire about the appellant s entitlement to interest on the 1994 arrears payments. [61] On 18 January 2007 the Corporation issued a decision determining that the appellant was entitled to the payment of interest of $5, This decision was taken on review and then appealed to the District Court. In decision number 12/20010, the District Court upheld the Corporation s decision. Late application for review [62] On 15 December 2007 Mr Robinson completed an application for review form for the appellant. The decision from which the review was identified as having the date 1/09/1974, being the date of the 1974 accident. The appellant sought, inter alia, recalculation of his ERC. [63] A review hearing was conducted on 27 February As there was no appearance from Mr Robinson or the appellant at the hearing, the Reviewer subsequently sought information from Mr Robinson in relation to the review. A number of communications followed between the Reviewer, Mr Robinson and the Corporation. [64] The Reviewer subsequently issued a review decision on 2 May 2008 dismissing the review. The Reviewer considered the four factors identified in the High Court decision of McDougall v ACC [1983] NZACR 677. The Reviewer stated, inter alia, from page 6: The length of delay is some 33 years. This is inordinate when it is considered that there was a month in which to lodge the application for review. The delay has meant that there can be no proper identification of the decision issued on ERC or the reasoning process for ACC choosing one calculation of relevant earnings over another. I accept that this should not be the prime reason for declining an extension but a 33 year delay does play a large part in this decision. This is because after 33 years documents have been well and truly destroyed and memories falter. Strengths and merits of the case On the face of it, there might be merit in Mr Robinson s argument that the vehicle and phone could have been included in Mr Morgan s relevant earnings. However, given the passage of time the ability to undertake any such investigation as to if and why they might not have been included has to be based on pure speculation. Furthermore it would probably involve a great deal of speculation to independently verify the value of such benefits. Most importantly decisions on the assessment of ERC was a discretionary one with ACC having to determine what was fair and reasonable

8 8 compensation. As noted in the Appeal Authority Decision of Patel (3/04) the Authority held that: On well established principles as recognised by the Appeal Authority over the years a decision arising from the exercise of a discretion ought not to be overturned on an appeal unless there has been some material oversight or error in principle when arriving at the decision. At this point Mr Robinson has failed to persuade me that there has been some material oversight or error in principle in ACC s decision determining Mr Morgan s ERC at a particular level. He has only claimed that ACC did not include Mr Morgan s benefits. While this might be the case there may have been a good reason for doing so. Mr Robinson has not been able to identify the actual decision outlining ACC s reasons for assessing the level of ERC. He has only referred to a date when Mr Morgan may have been first incapacitated. All the discussions within ACC as the reasons behind choosing a particular relevant earnings figure have been destroyed. Therefore it is impossible to state with any certainty that there was an error or material oversight in the decision making. As such I am not persuaded that the strengths and merits of the case rest with Mr Morgan. Prejudice to the ACC I consider there is substantial prejudice to ACC. As noted above any requirement of ACC to investigate this matter would require a lot of speculation and guess work due to the passage of time. Overall justice When looking at the matter overall, I find that it would not be just to revisit this decision after 33 years. The court in McDougall noted that the justice had to be considered on both sides. Mr Morgan has had 33 years in which to challenge ACC s original calculation. There have also been several moments in that 33 years that he has had prime opportunity to do so. The first had to be when the assessment was first made. There is no evidence that he did challenge it, nor is there any evidence that he did not. There may well have been some formal discussion at the time of the level of compensation payable. We simply cannot know. I had no opportunity to question Mr Morgan directly on this.. The further and prime opportunity to challenge that calculation was in Mr Morgan was legally represented at the time. There is no evidence at that time that Mr Morgan s solicitors queried the original assessment. There was also no indication that Mr Morgan was unhappy with the rate.

9 9 [65] From paragraph 2.24 on page 6 of submissions of counsel for the respondent a Notice of Appeal was filed by the appellant s previous solicitor, Philip Schmidt, on 13 May [66] In October 2008, Mr Schmidt prepared a letter wherein he recommended that the parties enter into discussions to ascertain whether the issues on appeal could be resolved. Mr Schmidt indicated that the appellant was seeking an increase of the appellant s relevant earnings figure; i.e. for the use of a vehicle ($1, per annum) and free use of a telephone ($59.94 per annum). [67] Counsel responded to Mr Schmidt on 20 November 2008 agreeing to an informal meeting to discuss the same. [68] The meeting took place on 13 February It was agreed that further information would be obtained by the appellant thereafter. [69] The following information was subsequently received on behalf of the appellant: A document from North Auckland Farmers Co-op Limited dated 31 January 1972 (received on 16 February 2009); A sworn statement from Brian Cates dated 24 April 2009; (received on 8 July 2009); and Information from the Department of Labour (received on 17 September 2009). [70] On 12 March 2009 Mr Schmidt advised that he was no longer acting for the appellant. Mr Robinson has since taken over the representation. Submissions for the respondent [71] The issue in this appeal concerns the late review application. [72] It is likely that the primary decision was issued by the Corporation some time in 1974 or Pursuant to s.153(4) of the Accident Compensation Act 1972 ( the 1972 Act ) the appellant was required to lodge an application for review in writing within one month of the decision from the Corporation. [73] A review officer, however, has a discretion to accept a late review. In McDougall v Accident Compensation Corporation (supra) the High Court held that there were four factors to be considered when exercising a discretion to allow a late application, namely: [a] [b] [c] [d] The length of the delay beyond the time allowed; The reasons for the delay; The strengths and merits of the applicant s case; and The prejudice to the respondent if the extension is granted.

10 10 Length of the delay [74] As stated above, the original decision was made in 1974 or The application for review was made in December Accordingly, the application has been made a little more than 30 years out of time. [75] It is submitted that the length of the delay is inordinate. Unfortunately, the result of the delay is that there are no documents currently available in relation to the decision made in 1974/75. Reasons for the delay [76] No direct evidence has been provided as to the reasons for the delay in lodging the application for review. [77] It is implicit, however, from the appellant s statement dated 30 April 2008, that he contends that he was unaware of his rights and believed that the Corporation had properly calculated his entitlement in accordance with the then ACC legislation. [78] Without benefit of a contemporaneous documentation in 1974/75 it is not possible to ascertain what information was provided to the appellant by the Corporation at that time in respect of his entitlement to ERC. [79] However, aside from the opportunity in 1974/75 to apply for a review, the appellant also had opportunities in May 1990 (when the first arrears payment was made) as well as 1993/94 (when the second arrears payment was accepted and made) to apply for a review. [80] In addition, the appellant had the benefit of legal representation in 1993 during that particular process. Strength and merits of substantive issue [81] It is accepted that the overriding concern is the interests of justice and for this reason this factor will play a significant role in whether leave is granted to permit the late review. However, given the considerable length of the delay there is merit in the submission that the merits must be clear, unambiguous and compelling. Calculation of ERC relevant law [82] Pursuant to s.113 of the 1972 Act the claimant was entitled to ERC where that claimant suffered a loss of earning capacity. Pursuant to subs.(2), in determining whether the claimant had suffered a temporary loss of earning capacity, regard had to be had to that claimant s relevant earnings. [83] A claimant either received earnings as an employee or earnings as a self employed person. These terms were defined under s.103. It appears that the appellant received earnings as an employee immediately before the 1974 accident. Pursuant to subs.(2), such earnings included: (a) Any wages, salary, allowances or remuneration of any kind paid or payable (whether at piece rates or otherwise and whether in cash or otherwise)

11 11 to any person in respect of or in relation to the employment of that person as an employee, [84] relevant earnings was defined under s.104. Subsection (1) read: For the purpose of determining the amount of any earnings related compensation payable during or after the period of short-term incapacity to an earner who suffers personal injury by accident in respect of which he has cover under this Act, or payable at any time to any dependent of such an earner, the amount of his relevant earnings shall be such amount as, in the opinion of the Commission would, at the time of the accident, fairly and reasonably represent his normal average weekly earnings, having regard to such information as the Commission may obtain regarding his earnings before the time of the accident and his earnings at the time of the accident, and to his work history in the period of his residence in New Zealand before the time of the accident. [85] Pursuant to subs(1), a claimant s relevant earnings was the amount that fairly and reasonably represented that claimant s normal average weekly earnings at the time of the accident. [86] The Corporation had a discretion to calculate a claimant s relevant earnings. The Corporation was required to take into account information regarding that claimant s earnings before the accident, at the time of the accident as well as his or her work history in the present case none of this information is now available. [87] Subsection (2) set out the particular factors relevant to the calculation of ERC for an earner who received earnings as an employee at the time of the accident. These factors included: A claimant s weekly earnings at or about the time of the accident; A claimant s average weekly earnings during the period of 28 days immediately preceding the date of the accident; A claimant s average weekly earnings during the 12 month period immediately preceding the date of the accident. [88] The proviso to subs.(2) read that nothing in this subsection shall preclude the Commission from having regard also to such other factors that it may consider relevant for the purpose of subsection (1) of this section. [89] The Corporation, therefore, had a wide discretion to calculate a claimant s ERC. As the Accident Compensation Appeal Authority held in Kendall v ACC [1992] NZAR 163, with respect to the equivalent provision under the 1982 Act, at page 166: Under that subsection the clear duty of the Corporation is to ascertain what amount would fairly and reasonably represent a claimant s normal average weekly earnings at the time of his accident, but in doing so it may have regard to its earnings before the time of the accident and take into account his work history and other relevant factors.

12 12 Subsection (3) of s53 confers very wide discretions on the Corporation in fixing the relevant earnings of a self-employed person. It lists five separate factors and states that the Corporation may have regard to all or any of these factors as it thinks appropriate for the purpose [90] In Kendall, the following passage was cited from Lord Evershed MR, in the decision of Wootton v Central Land Board [1957] 1 ALLER441: It is a common place in cases which come before this court relating to the exercise of a discretion, and more particularly relating to the exercise of a discretion in regard to costs, that this court is very slow indeed to interfere with such exercise. Put in another way, it can be asserted that there is no question of law which this court is competent to determine relating to the exercise of a discretion unless it is shown clearly that, in the exercise of a discretion, the tribunal appealed from has in some material and substantial respect wrongly or unjudicially exercised the discretion, either by some wrong, some erroneous, direction of itself as to the foundation for the exercise, or (I think sometimes it may be said) where the result arrived at is one producing in the opinion of this Court a manifest injustice [91] The Appeal Authority proceeded to determine at page 188: I accept the statement of principle expressed in Wootton v Central Land Board cited above. Similar principles have been stated by the High Court and Court of Appeal in this country on numerous occasions. On the facts of this case the Corporation did not wrongly or unjudicially exercise its discretion nor in my opinion did that exercise of its discretion produce a manifest injustice. In my opinion the Corporation correctly exercised its discretion arriving at a just result. [92] Having regard to the above principles, in order for the appellant to succeed on the substantive issue in this appeal, he must demonstrate that the Corporation s calculation is manifestly wrong or that there has been some material oversight or error. Case for the Appellant [93] It appears that the appellant was employed as a stock agent with Allied Farmers at the time of his accident in [94] The appellant states that he received the use of a work vehicle (a 1.6 litre Hilman Hunter), free use of a telephone and a $2 a week expense allowance. The values placed on these allowances by the appellant are: Use of vehicle ($29.20 per week) $2, pa Free telephone ($1.15 per week) $ pa Expense account ($2 per week) $ pa [95] With respect to the vehicle, a formula is identified at paragraph 6.1. Four factors are identified including the cost of the vehicle, interest, depreciation and running costs. The appellant then relies on another formula to arrive at the figure of $2,038.50; namely the cost to the employer (13.59 cents/km) multiplied by 15,000 km which appears to be the estimated personal use by the appellant.

13 13 [96] At paragraph 5.7, the appellant contends that the three allowances were not taken into account by the Corporation when calculating his relevant earnings in 1974/75. It is not clear as to the basis for this contention. It appears to be made on the following premise: [a] [b] The calculation of the appellant s ERC at paragraph 5.6 based on a relevant earnings figures of $4, per annum (being $83.68 per week); and The approximation of the appellant s pre-accident income at $4,000 in 1974 (being $76.92 per week). Decision [97] At paragraph 5.6, the appellant contends that the crossed out figure on the document at tab 4 thereto refers to the figure of $4, This contention is simply not correct and the Authority finds accordingly. [98] The figure crossed out is, in fact, $ This amount is the same as the figure shown at the bottom of that page in respect to the date 2 November 1988 the figure relates to the relevant earnings amount (increased by orders in Council) in The figure of $80.77 appears, from this document, to be the appellant s initial relevant earnings amount (before the orders in Council) as determined by the Corporation in 1974/75. This document was, it appears, prepared by the Corporation in 1989 or It is not clear where the Corporation the derived the figure of $ However, the Corporation relied on this figure to calculate the arrears payments in 1990 and [99] On the assumption that the figure, $80.77, is correct, this then is the only available record concerning the Corporation s calculation in 1974/75. [100] However, the appellant s pre-accident earnings, upon which the figure of $80.77 was based, is not available. It is not known whether the figure was based on the appellant s earnings at the time of the accident, over a 28 day period, a 12 month period or such other period as the Corporation was then entitled to consider. Further, it is not known whether the figure was based entirely on the appellant s income in hand or also based on allowances such as the free telephone, expense account or private use of vehicle. [101] It is not known whether the Corporation was then informed of these allowances and, if so, what amount was placed thereon. Further, if the Corporation was informed, did the Corporation decline to include these amounts and, again, if so, why? [102] Without contemporaneous documentation it is simply not possible to ascertain what information was taken into account or relied on by the Corporation to calculate the relevant earnings figure. The Authority agrees with Mr Tui that any consideration in 2010 would be based on assumptions and pure speculation. [103] Upheld is Mr Tui s submission that in the absence of this information, it is not possible for the appellant to establish that the Corporation s decision was manifestly wrong. There is simply no compelling reliable evidence available.

14 14 [104] With respect to the suggestion that reliance can be placed on the difference between the relevant earnings figure and the approximately salary for stock agents in 1974, upheld is Mr Tui s submission that this is somewhat of a long bow. The figure of $4,000 is not suggested as being accurate. It is an estimate only, based on the following: [a] [b] [c] Mr Cates prepared a statement on 24 April Relying on a work document from January 1972, revealing that he had received an increase in his salary from $3,200 to $3,500, Mr Cates suggests that he (and the appellant) would have been on basic salaries by 1974 of approximately $4,000 per annum ; Frank Colthurst prepared a statement on 17 April 2008 wherein he states that he has checked with older senior agents of the era. Relying on an ex Wrightsons manager [having] cited documents from that time Mr Colthurst stated that the salary of $4,000 and a Hilman Hunter car was close to the average salary paid and type of car driven ; The appellant also relies on the Department of Labour s award rates for 1974 which again are only estimates. [105] The Authority agrees with Mr Tui that such an approach is fraught with risk, being as it is based on a number of assumptions none of which can be established as applying precisely to the appellant in September Further, it cannot be established that the Corporation relied on these figures when it undertook the calculation in 1974/75. [106] With respect to the quantum of the vehicle, the appellant relies on a formula that considers the cost to an employer. [107] In Lewis v ACC HC 149/93 (Barker J, Auckland registry, 13 April 1994) the High Court considered whether the non taxable benefit from the personal use of a work car could be compensated under the Accident Compensation Act The High Court held that it could. In considering how such an allowance could be quantified, the High Court noted, inter alia, at pages 12 and 13: Evidence could be given as to the extent to which the employee used the car for private purposes, the cost of running vehicles of all kinds is regularly addressed by motoring organisations; there are recognised scales for assessing costs per kilometre such as the public service scale [108] Really there is currently no evidence provided for the appellant in respect to his private use of the company vehicle in In order to arrive at any figure here requires evidence from the appellant. Prejudice to the Corporation [109] As stated above, in order for the appellant to succeed with this appeal, he must demonstrate that the exercise of the Corporation s discretion in 1974/75 was manifestly wrong.

15 15 [110] The Authority agrees with Mr Tui that there is simply no evidence available to shed light on the Corporation s exercise of its discretion in 1974/75. The documentary evidence relied on by the appellant are estimations and approximations. Any recollections are almost certain to be adversely affected by the passage of time. [111] In upholding Mr Tui s submission that the Corporation is significantly prejudiced by the delay, the Authority is obliged to conclude that the appeal be dismissed. The appeal is dismissed. DATED at WELLINGTON this 24 th day of December 2010 P J Cartwright ACA doc(aw)