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Campbell & Handley v Accident Compensation Corporation [2004] NZCA 39 (29 March 2004)

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Campbell & Handley v Accident Compensation Corporation [2004] NZCA 39 (29 March 2004)

Last Updated: 6 April 2004



IN THE COURT OF APPEAL OF NEW ZEALAND

CA138/03


BETWEEN KATHERINE CAMPBELL AND DANIEL HANDLEY
Appellants

AND ACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 12 February 2004

Coram: McGrath J
Glazebrook J
William Young J

Appearances: J M Miller for Appellants
I R Millard QC and P A McBride for Respondent

Judgment: 29 March 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1]Katherine Campbell, who was born on 2 June 1985, suffers from cerebral palsy. Daniel Handley suffered severe brain damage at his birth on 11 December 1989. Their conditions were caused by medical misadventure and both, therefore, had cover under the Accident Compensation Act 1982 ("the 1982 Act"). Neither, however, made any claim under the 1982 Act which was repealed and replaced by the Accident Rehabilitation and Compensation Insurance Act 1992 ("the 1992 Act").
[2]Each eventually applied for their ACC entitlements; this in 1994 (in the case of Daniel Handley) and in 1995 (in the case of Katherine Campbell). These applications were successful (albeit only after some time in the case of Daniel Handley). So they now receive money for the constant attendant care which they require. These payments have been calculated from 29 November 1995 in respect of Daniel Handley, and 28 May 1996 in respect of Katherine Campbell. The Accident Compensation Corporation (to which, along with its differently named predecessor under the 1992 Act, we will refer as "the Corporation") has declined to make any payment in relation to attendant care provided prior to those dates.
[3]The Corporation’s stance has been upheld by the District Court and High Court.
[4]The appellants now appeal to this Court by way of case stated on the following point of law:
Whether the appellants were, pursuant to section 149(1) of the 1992 Act, entitled to receive any compensation under section 80 of the Accident Compensation Act 1982 immediately before the 1st day of July 1992.

Our general approach to the case

[5]The statutory interpretation issues thrown up by the case are made particularly difficult by numerous amendments to the scheme introduced by the 1992 Act. In that context, we think it appropriate to adopt a chronological approach to the evolution of the relevant statutory provisions and their application to the situations of the two appellants. Although this is not an entirely orthodox way to structure an appellate judgment, it has the advantage of providing the clearest insight into legislative intention and a reasonably clear answer to the issue posed by the case stated.
[6]We recognise that in structuring the judgment in this way we are deviating from the way in which the case was argued by the parties and indeed dealt with in the District Court and High Court. It is accordingly appropriate to test the conclusion suggested by our preferred approach against the earlier judgments and the arguments advanced to us.

The position under the 1982 Act

[7]Sections 93-99 of the 1982 Act made provision for the Corporation to be notified of accidents, records of accidents to be kept by employers, employer reporting of accidents to the Corporation and, importantly, the making of claims by and on behalf of injured persons. Section 98(1) specified a time limit of 12 months for the making of claims but this was subject to s98(2):
(2) A failure to forward any such claim within the time specified in subsection (1) of this section shall be no bar to the claim if the Corporation is of the opinion that it has not been prejudiced in the determination of the case by the failure, whether in the making of inquiries or otherwise, or that the failure was occasioned by mistake of fact, or by mistake of any matter of law other than the provisions of this section, or by any other reasonable cause.

Given s98(2), claims by or on behalf of the appellants made during the currency of the 1982 Act would have been accepted despite the failure to comply with s98(1). It is common ground that this is so.

[8]It is also common ground that if such claims had been made the Corporation would inevitably have concluded that the appellants had suffered personal injury by accident.
[9]Section 80(3) provided:
(3) Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.

Four points can be made about this subsection and its application to the appellants:

1. The entitlement to payment is expressed in discretionary terms (ie "the Corporation ... may pay ...")
2. The amount payable was also subject to a discretionary assessment which could be reviewed (ie "such amounts as the Corporation from time to time thinks fit").
3. The discretions under the subsection had to be exercised on a principled basis.
4. There could be no principled basis for not making payments under s80(3) in respect of the appellants.
[10]Against that statutory background, it is clear that, as at 30 June 1992, the appellants could have obtained compensation from the Corporation under s80(3) even though their ability to do so would have depended upon the Corporation exercising discretions in their favour under ss98(2) and 80(3) of the 1982 Act.

The key provisions of the 1992 Act as first enacted

Attendant care entitlements under the 1992 Act

[11]Section 26 of the 1992 Act provided:
(1) In order to ensure--
(a) Consistency of provision of social rehabilitation; and
(b) Certainty of entitlement to social rehabilitation--
no provision of, or payment in respect of, social rehabilitation shall be made by the Corporation in respect of any person except as required or permitted by regulations made under this Act.

For the purpose of this provision, "social rehabilitation" included attendant care, see s26(4)(a) of the 1992 Act.

[12]We will refer later in this judgment to the relevant regulations which were made under s26 (see paras [29] – [35] below). The inter-relationship between these regulations and the transitional provisions of the 1982 Act is quite complex. For present purposes it is sufficient to say that, subject to any rights which the appellants might have under those transitional provisions and the interconnecting provisions in the regulations, neither has any entitlement to attendant care provided prior to his or her first application to the Corporation.

Time limits for claims under the 1992 Act

[13]Section 63(2) provided:
(2) No claimant shall be entitled to any payment in respect of personal injury unless that claimant has lodged a claim for cover within 12 months after the date on which the personal injury is suffered.
[14]The time limit provided by this section was absolute. In saying this we are conscious of the humane decision of Judge Imrie in Tina v Accident Rehabilitation and Compensation Insurance Corporation (DCA number 179/94, 9 March 1995) in which that Judge avoided the apparent effect of s63(2) by concluding that either:-
1. The word "claimant" in s63(2) should be read as referring to people who have reached the age of majority; or
2. Section 63(2) should be read as if the words are "or within 12 months after attaining the age of 20 years" were added to it.

We are not able to read s63(2) as first enacted in that way, although we recognise that we now have the comfort of knowing that the sections have been retrospectively amended (para [36] below).

The transitional provisions of the 1992 Act as first enacted

[15]Section 135 provided:
(1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the 1st day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act.
(2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982.
(3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the 1st day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed.
(4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act.
(5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that [would be covered by this Act had it occurred on or after the 1st day of July 1992].
[16]As it turned out, neither appellant submitted a claim prior to 1 October 1992 with the result that neither was subject to s135(3). Section 135(5) therefore applied. Because the personal injury by accident which each of the appellants had suffered was also personal injury within the meaning of the 1992 Act, they had cover under that Act.
[17]The effect of ss135 and 63 was that:
1. Those who had suffered personal injury by accident under the 1972 or 1982 Acts could file claims prior to 1 October 1992 and, if they did, the "acceptability of that claim" would be determined under the 1982 Act (see s135(3)). So too would their continuing entitlements to rehabilitation, compensation, grants and allowances; this given s135(4). But these continuing entitlements were subject to "this Part of this Act".
2. Those who had suffered personal injury by accident which was subject to the 1972 or 1982 Acts and who did not make a claim prior to 1 October 1992 would have cover under the 1992 Act if the personal injury by accident was also personal injury under the 1992 Act.
3. The time limit provided by s63 meant that no claim could be made after 1 October 1992 in relation to an accident which occurred on or before 1 October 1991.
[18]Section 149 provided:
Where any person was receiving or entitled to receive any compensation under section 121 of the Accident Compensation Act 1972 or section 77 or section 80 of the Accident Compensation Act 1982 immediately before the 1st day of July 1992, that section shall continue to apply to payments in respect of that person until the 31st day of December 1992 as if those sections had not been repealed.

Section 149 contemplates two classes of claimants: those who were being paid compensation and those who were "entitled to receive" compensation.

[19]Unless the concept of entitlement to receive compensation includes those whose ability to receive payment depended on unexercised discretionary assessments, it is not easy to see anyone who, as at 30 June 1992, was entitled to receive compensation under s80(3) but was not then being paid such compensation. We say this because section 80(3) conferred on the Corporation a discretion to pay which could be exercised "from time to time". On a literal view of the subsection no claimant could ever have an absolute right to future payments. To put the same thing another way, s80(3) is "a discretion to pay" section rather than an "entitlement to payment" section.
[20]The other subsections of s80 are cast in the same way as s80(3); that is they conferred discretionary authority on the Corporation to make payments to a claimant. So they too did not confer on claimants any absolute right to payments.
[21]Section 121 of the 1972 Act was to the same broad effect as s80 and entitlements under that section also depended on discretionary assessments by the Corporation.
[22]Section 77 of the 1982 Act dealt with damage to artificial limbs, clothing and contact lenses and it is not clear why it is mentioned in s149 along with s121 of the 1972 Act and s80 of the 1982 Act. Entitlements under s77 did not depend on discretionary assessments.
[23]Since the legislature presumably intended the words "entitled to receive compensation" to have some application outside cases involving s77 of the 1982 Act, that meaning might be thought to encompass people whose "right" to receive compensation was conditional upon some exercise of discretion on the part of the Corporation.
[24]In the argument before us, Mr Millard QC for the Corporation recognised the force of this consideration. But he suggested that a person could only be in the "entitled to receive" category if some steps had been taken prior to 1 July 1992 to prosecute a claim. This argument depended primarily on scheme and purpose considerations and was supported by the weight of authority on the point in the District Court (to which we will refer shortly). Mr Millard did not seek to tie his arguments closely to the words of s149.
[25]We are satisfied that Mr Millard’s contention is not right. In the context of s135, it is inescapable that the "entitled to receive" class created by s149 encompassed potential claimants who had not made claims prior to 30 June 1992 but who were to lodge claims prior to 1 October 1992. So ss135 and 149, when read together, make it clear that the lodging of a claim prior to 1 July 1992 was not a prerequisite to the application of s149.
[26]In the course of his argument Mr Millard floated the possibility that the "entitled to receive" class created by s149 might encompass only those who had already lodged claims by 1 July 1992 or who later lodged claims prior to 1 October 1992. But we see nothing in s149 which would support the view that those "entitled to receive" immediately prior to 1 July 1992 should be ascertained by reference to what happened later, ie. between 1 July 1992 and 1 October 1992. It should be borne in mind, of course, that the 1992 Act, as first enacted, provided a very tight time limit for the making of claims. Given this time limit, the class of claimants who might come within s149 who had not lodged a claim prior to 1 July 1992 was limited, including only:

(1) Those who were to lodge a claim prior to 1 October 1992; and

(2) Those whose personal injuries arose after 1 October 1991 but prior to 30 June 1992 and who were to lodge their claims in a timely way consistent with s63(2).
[27]In the course of argument some attention was given to the phraseology of s149 and, in particular, its direction that s80 of the 1982 Act "shall continue to apply to payments in respect of that person until the 31st day of December 1992". Conceivably that phrase could be read as applying only to such payments as were actually made prior to 31 December 1992. The other approach to the words is to construe them as applicable to payments referable to that period. That latter approach is preferable. Entitlements in this context cannot sensibly be regarded as depending upon the vagaries of when payment is actually made.
[28]In that context, we are satisfied that, for the purposes of s149 of the Act, the category of those entitled to receive compensation included potential claimants who had not lodged claims as at 30 June 1992 and whose ability, at that time, to receive payment would depend on assessments which had not then been made by the Corporation.

The Regulations under the 1992 Act

[29]The relevant regulations in force at the time the appellants first made their claims were the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation – Attendant Care) Regulations 1993. Regulation 8(1) provided:
Commencement of payment
(1) ...[W]here a person is assessed as entitled to an attendant care payment, that payment shall become due and payable from the date of the written application or the date of discharge from a hospital following initial treatment for the personal injury, whichever is the later.
[30]That regulation must be read with r3 which provided:
(1) Except as provided in section 149 of the Act and subject to these regulations, these regulations shall apply--
(a) To any application received on or after the 1st day of July 1993 from a claimant for payment for attendant care; and
(b) On and after the 1st day of July 1993, in respect of any claimant for whom any payment for attendant care under section 80(3) of the Accident Compensation Act 1982 has been continued until the 30th day of June 1993 by virtue of section 149 of the Act; and
(c) To any claimant who at any time in the period beginning on the 1st day of July 1992 and ending with the close of the 30th day of June 1993 was entitled to attendant care under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation--Attendant Care) Regulations 1992 and who, immediately before the commencement of the 1st day of July 1993, continued to be so entitled.
(2) A claimant to whom subclause (1)(b) of this regulation applies shall be deemed to have made a written application to the Corporation for attendant care.
[31]For the sake of completeness we should also refer to the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation-Attendant Care) Regulations 1992 ("the 1992 Regulations") which were promulgated on 14 September 1992. Regulation 7 of the 1992 Regulations corresponded to r8 of the 1993 Regulations.
[32]Two issues arise as to the impact of the 1993 Regulations on the entitlements of the appellants.
[33]The first issue relates to the language used in r8(1) of the 1993 Regulations.
... due and payable from the date of the written application ... .

Mr Miller sought to argue that this simply meant that no money would be paid until after an application was lodged with the Corporation and did not mean that no payments would be made which were referable to periods of time prior to that application. This is a similar issue to the one we considered in para [27] above. It seems to us to be sensible to treat such wording as referable to periods of time in respect of which relevant compensation is payable and not to the dates on which money changes hands. Further, on Mr Miller’s argument, r8(1) would be no more than statement of the obvious, as plainly the Corporation would not make payment until after application had been made.

[34]A rather more difficult question relates to the application of r3(1)(b) where entitlements under s149 had run on until 30 June 1993 but where no payments under that section were made prior to 30 June 1993. The language used in the Regulation may be thought to assume that in any case to which it applied, payments would in fact have been made prior to 30 June 1993. Such an assumption, however, is unsurprising. Given the time bar provided for by s63(2), at the time the 1993 Regulations were promulgated (28 June 1993) there would have been, at most, comparatively few claimants who could credibly have claimed an entitlement under s149 who had not already made claims. Where such claims had been made and an entitlement existed, payments would usually have commenced by 30 June 1993. The situations of the present appellants would have been far removed from the mind of whoever drafted the regulations (as, by 28 June 1993, their claims were absolutely time barred by s63 of the 1992 Act). So there is, perhaps, scope for an approach to r3(1)(b) which is more generous than that contended for by the Corporation.
[35]Whether r3(1)(b) can be construed in favour of the appellants was the subject of some argument before us but essentially only as a contextual issue in relation to our assessment of the primary arguments of counsel which focused on s149 of the 1992 Act. In those circumstances and given, as well, the question posed by the case stated, we do not express a concluded view whether the two appellants are entitled to rely on r3(1)(b) in relation to the periods of time which elapsed between the expiry of their s149 entitlements and when their applications were first lodged with the Corporation.

Subsequent amendments to the 1992 Act

Amendment to s63

[36]For present purposes, the key alteration to the 1992 Act was effected by s3 of the Accident Rehabilitation and Compensation Insurance Amendment Act 1995 which amended s63 so that it relevantly provided:
(2) Except as provided in subsection (2A) of this section, no claimant shall be entitled to any payment in respect of personal injury unless that claimant lodges a claim for cover within 12 months after the date on which the personal injury is suffered.
(2A) A failure to lodge a claim in respect of personal injury within the time specified in subsection (2) of this section shall not be a bar to payment in respect of that personal injury if the Corporation is of the opinion that the Corporation has not been prejudiced in determining cover or payments in respect of that personal injury by the failure to lodge the claim within the time specified.

These amendments had retrospective effect back to 1 July 1992.

[37]For reasons already indicated, the appellants lost all entitlements to compensation when they did not lodge claims by 1 October 1992; this given the combined effect of ss63(2) and 135(3) of the 1992 Act as first enacted. With the retrospective amendment of s63 in 1995, the appellants’ ability to obtain compensation was reinstated.
[38]The Corporation has accepted the appellant’s claims under s63(2). Accordingly they must be regarded as having cover under the 1992 Act pursuant to s135(5).
[39]For reasons already given, we are of the view that unexercised discretionary assessments did not exclude a potential claimant from the category of those entitled to receive compensation for the purposes of s149. On this basis there is no principled basis for concluding that the appellants are outside the category of those entitled to receive compensation for the purposes of s149 of the 1992 Act merely because of their need, as at 30 June 1992, to obtain a favourable decision under s98(2) of the 1982 Act before they would have been able to receive any cash payments.
[40]Accordingly, we are of the view that the appellants come within s149 and are entitled to have their claims under s149 of the 1992 Act assessed by the Corporation.

Amendments to s149

[41]In December 1992 s149 was amended by the addition of what became subsection (2):
The reference to the 31st day of December 1992 in subsection (1) of this section shall be read as the 30th day of June 1993 in respect of compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 that is compensation in respect of-
(a) Provision of attendant care (being personal care and mobility assistance necessary for the injured person); ...
[42]The section was further amended in 1993. These amendments added new subsections to s149. Of possible relevance to this case are subsections (3) and (5):
(3) Notwithstanding subsections (1) and (2) of this section, where any person was receiving compensation under section 121 of the Accident Compensation Act 1982 in respect of attendant care (being personal care and mobility assistance necessary for the injured person) at a weekly rate of $350 or more immediately before the 1st day of July 1992, those sections shall continue to apply in respect of that person as if those sections had not been repealed and the entitlements in respect of the person may be reassessed from time to time under those sections.
...
(5) Where subsection (3) of this section applies, the person concerned-
(a) Shall not be entitled to receive compensation in respect of attendant care or household help under regulations made under this Act; but
(b) Shall be entitled, not more than once in any 12-month period, to elect to be assessed for entitlement for compensation for attendant care and household help under regulations made under this Act.
[43]The terminology, and in particular the words "was receiving compensation", suggest that the amendments apply only in relation to claimants who were actually receiving payments prior to 1 July 1992 at a weekly rate of $350 or more. These sections are of no direct relevance to the present appeals and we have set them out simply to note the language in the amendments ("was receiving compensation") as compared to the different language used in s149 as originally enacted ("entitled to receive" and "payments in respect of that person until ...").

Summary of our views

[44]Based on our chronological analysis of the relevant legislation we have reached the following conclusions:
1. Immediately before 30 June 1992, the appellants were "entitled to receive ... compensation" under section 80(3) of the 1982 Act and were thus within the scope of s149 of the 1992 Act.
2. Had they lodged applications before 1 October 1992, they would have been entitled to compensation under s80 of the 1982 Act until 31 December 1992, a date which was later extended to 30 June 1993 (see para [41] above).
3. When they did not make application to the Corporation before 1 October 1992, they lost all entitlements under the 1982 and 1992 Acts; this by reason of s63(2) of the 199[1810] EngR 535; 2 Act.
4.
With the retrospective amendment of s63(2) which was made in 1995 to permit out of time claims to be considered and with their claims to be entitled to cover subsequently accepted, each has an entitlement to compensation for attendant care provided to them from when they were born down to 30 June 1993.
5. Their entitlements to attendant care payments in respect of periods of time after 30 June 1993 but prior to when they first applied to the Corporation depends upon the interpretation of the 1993 Regulations, and this is not specifically before us for determination.

The approach taken in the District Court and the High Court

The state of the authorities prior to the present appeals

[45]Issues broadly similar to those raised by the present appellants had previously fallen for decision in three District Court cases, Ravestein v Accident Rehabilitation and Compensation Insurance Corporation (unreported, DC Wellington, D65/95, Imrie DCJ, 7 June 1995), Messner v Accident Rehabilitation and Compensation Insurance Corporation (unreported, DC Wellington, D180/97, Ongley DCJ, 19 May 1997) and Rakete v Accident Compensation Corporation (unreported, DC Wellington, D219/00, Middleton DCJ, 23 August 2000).
[46]In Ravestein the appellant, who was otherwise broadly in the same position as the present appellants, had the advantage of a finding that an informal approach made by her mother to the Corporation in 1984 was an application for all her entitlements under the 1982 Act. Interestingly, Judge Imrie did address one of the issues raised by the Corporation in the present case, the contention that the existence of a discretion standing between a claimant and payment is inconsistent with that claimant being "entitled to receive" compensation for the purposes of s80(3).
.... I do not overlook that under s80(3) of the 1982 Act the Corporation has a discretion to make payment, but that discretion had to be exercised properly, and in the case of the appellant it would have been exercised in her favour. Although the amounts payable and the periods for which amounts were paid were matters for the Corporation to decide, and during some periods there may have been no payments at all, the history of this claim shows that some payments would have been made from time to time and that there would have been entitlement to payment immediately before 1 July 1992 (and thereafter).
[47]In Messner, Judge Ongley took a rather more restrictive approach. There the appellant had been injured in early 1992 and, prior to 30 June 1992, had received some assistance from the Corporation. She had not, however, formally applied for rehabilitation assistance (which was available under s80 of the 1982 Act) and as well, she had not required attendant care until mid-August 1992 (which was when she was released from hospital). Judge Ongley rejected the appellant’s claims in relation to rehabilitation and attendant care. Having dealt with an argument which is not material to the present litigation, the Judge went on:
The argument concerning s149 may be put another way, that is to say that, although no s80 compensation had been granted by the Corporation to the appellant, in due course she would have been entitled to payments under s80, and so she was "entitled" to receive such compensation and it is preserved under s149. It is a broad interpretation of the word "entitlement" to apply it to s80 compensation which is payable as the Corporation thinks fit. There is unlikely to be any entitlement until the Corporation makes a grant of compensation. Such a broad interpretation runs counter to s136(1) which states that entitlements to compensation for rehabilitation are to be determined under the 1992 Act. If the appellant’s argument was accepted, that is to say that there was an entitlement although no payment had been made, then it would follow that all persons who had lodged claims under the 1982 Act would be able to continue claiming rehabilitation under s80 of the 1982 Act. Section 136(1) of the 1992 Act would then have no effect. Finally, the means by which s149(1) is expressed to continue an entitlement available under s80 is that the revoked section ‘shall continue to apply to payments in respect of that person’. There is a distinction to be drawn between ‘payment’ and ‘entitlement’ where those words are used in the Act. The natural application of s149(1) applies to the preservation of a right to payments when an entitlement has been established by a grant of compensation made by the Corporation.
...
Attendant care
This class of claim could not have arisen until the appellant was discharged from hospital on 11 August 1992. In fact, the claim relates to the period from 11 August 1992 until 31 December 1993. Because it related to a period after the commencement of the 1992 Act it cannot be ‘grandfathered’ under s149 of the Act.
[48]Rakete involved a 1975 accident in respect of which the claim was lodged on 22 September 1992. In that case Judge Middleton rejected the appellant’s contention that she had an entitlement under s149 to s80(3) compensation. This is what the Judge said:
It is quite clear that as the appellant’s application for cover had not been lodged until 22 September 1992, she was not receiving any form of compensation covered by the transitional provisions of section 135 of the 1992 Act.
I accept the respondent’s submission that in the absence of any claim there could be no entitlement to receive compensation under the 1982 Act so that the appellant was not then "entitled to receive" compensation under the 1982 Act. That finding is supported by observations of Judge Ongley in Messner (180/97).
While the appellant has referred me to the decision of the Court in Ravestein (65/95) the factual basis for that decision is quite different. The appellant in Ravestein had lodged a claim with the respondent at a time when the 1982 Act was still in force and the appeal was allowed because of the failure of the respondent to make the payments to which that appellant was then entitled. It was found in that case that the appellant had cover under the Act and had established a qualification for compensation which had not been honoured by the respondent and it was that failure which entitled the appellant to compensation.
...
I consider that by the time the appellant had lodged her claim she had no entitlements under either the 1972 or 1982 Acts which had by then been revoked and replaced by the 1992 Act.
A further complication so far as the appellant is concerned is that even if she could satisfy the requirements of section 149(1) she would also have to demonstrate that pursuant to section 149(3) she was in receipt of attendant care payments under either the 1972 or 1982 Act immediately before 1 July 1992 and was receiving a weekly rate of $350 or more. It is quite clear that the appellant cannot overcome that requirement even if my findings in relation to section 149(1) are wrong.

The approach in the District Court to the appeals by the present appellants

[49]The appeals by the appellants to the District Court were dismissed by Judge Middleton on 14 June 2001. Although he delivered separate judgments they are expressed in very similar terms. So the reasons that he gave for dismissing each appeal are in substance the same.
[50]In the case of Daniel Handley these reasons were expressed in these terms:
In both Messner and Rakete, the Court has held that an appellant must satisfy the requirements of section 149(1) of the 1992 Act that he was receiving or entitled to receive compensation under section 80 of the 1982 Act at the time he lodged his claim. I do not consider that the appellant has established an entitlement to receive payments under section 80 of the 1982 Act because he had not lodged a written claim prior to 1 July 1992 which had been accepted by the respondent. If such a claim had been accepted but no payments made then he would have been "entitled to receive" compensation as envisaged by section 149(1). However, I consider that it is a condition precedent to a grant of cover that a written claim had to be lodged prior to 1 July 1992.

The approach taken by Hammond J in the High Court

[51]Hammond J dismissed appeals by the present appellants from the two judgments of Judge Middleton.
[52]His reasoning appears in the following passages from his judgment:
[23] First, in jurisprudential terms, it seems to me that Mr Miller’s argument was that these appellants, notwithstanding that nothing had ever been done by or on their behalf were nevertheless, in the abstract, under the "cover" of a beneficient accident compensation scheme right from the time of the occurrence of the misfortune which has afflicted their lives. I suggested to him in argument that he was really contending that the appellants always had an inchoate right. Mr Millard said that it was "stronger than that" – the appellants always had a "present right" to cover under the Act. In effect, as I understood counsel, he was saying that any steps that required to be taken under the 1982 Act were what might be termed mechanical or administrative or bureaucratic and did not affect the basic entitlement which had always "been there", if I may so term it.
[24] In reply, under this head Mr Millard said during the course of oral argument that the description of the appellants’ rights as being "inchoate" is more accurate. In a broad sense these children did have a general right which was available to all New Zealanders. But it never came to fruition unless and until what was required by the Act was done, and no steps had here been taken.
[25] I mention this point, not as one of abstraction. It is of some distinct practical consequence because if Mr Miller is right then there must be a class of claimants "out there" who might not yet have come forward and whose rights, despite the provisions of the 1992 Act, have not been abridged. It is unlikely that is a consequence which Parliament can be taken to have had in contemplation in settling these transitional provisions.
[26] Secondly, I think Mr Millard has to be right that on any view of the matter s 149 is a transitional provision, not a saving provision. (See the importance of that distinction as noted in Accident Rehabilitation Compensation Insurance Corporation v Watton [2000] NZCA 265; [2001] NZAR 513 (CA) at para 2).
[27] Thirdly, that transition was from the broader 1982 Act to the more insurance – like scheme of the 1994 Act. (A relatively concise history of the evolution of the legislation in New Zealand is set out in the introduction to Personal Injury in New Zealand, "History of Accident Compensation Legislation New Zealand" (2002).) This generates a context that injured persons who were entitled to a range of entitlements were given a period to adjust before a narrower, and more prescriptive range of entitlements came into being.
[28] Fourthly, turning to the wording of s 149 itself, the word "entitlement" does not exist in a vacuum. The whole of the words of s 149 have to be considered. They created a temporal limitation on an "entitlement", to one at a specific time ("immediately before 1 July 1992"). And that existing entitlement was carried on for the periods, and in the manner, I have already noted.
[29] Fifthly, the construction that the words "entitled to receive" implied an immediate entitlement (as of 1 July 1992) is supported by the legislative and (perhaps) the regulatory context.
[30] As to the later, there is distinct room for argument. Regulations generally do not alter the meaning of the primary statute, at least without specific authority in the statute. But as Professor Burrows has said "they may assist in casting light on the intended meaning of the statute" (see Burrows, Statute Law New Zealand (2nd ed, 1999), p 158). Here there were regulations (made under both s 26 and s 167 of the 1992 Act) which specified the procedural terms on which attendant care payments are made. See the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation – Attendant Care) Regulations 1992; there were like regulations which took effect from 1 July 1993. However there is not, I think in this instance, much support to be gained from the regulations. The argument is really, in logical terms, a bootstrap argument. It has even been suggested that the regulations are ultra vires, and I understood it to be said from the Bar that other proceedings are presently being advanced in that respect.
[31] As to the legislative context, the appellants (necessarily) seek to overcome the arguments that favour the interpretation of the legislation advanced for the ACC by resorting to the broad purposes of the 1982 Act – it has to be said "writ large". But the Act has to be read as a whole, and the specific provisions to which I was referred must be given effect to.
[32] The enabling provision under the 1982 Act for benefits of the kind in issue in this case is s 80(3), to which this Court has already referred. The ACC is given a discretion (to be exercised on proper grounds – see Accident Rehabilitation Compensation Insurance Corporation v Campbell [1996] NZAR 278 at p 286) in that respect. Part 7 of that statute then sets out prescribed procedures, including a duty to give notice of the accident under s 93. No notice was here given. There are then the provisions of ss 96 and 97 which impose a duty on a person wishing to make a claim to formally do so, in writing, with power under s 97 for some other person to do this on their behalf if they are incapacitated. And in s 99 the 1982 Act prescribes the particulars required of a claim, and sets out what the ACC is to do with respect to evidence. Section 98 of the 1982 Act imposed a limitation period of 12 months after the date of the accident causing the injury; and s 100 required notice of the decision to be given.
[33] It is simply not possible to set these provisions to one side. Against them, I cannot see how the appellants could say that they were "entitled to receive" any compensation under s 80 immediately before 1 July 1992, where no claim had been made; the claim was out of time; and potentially might not pass the s 98(2) test. The ACC had not yet made a decision, let alone issued one, and the ACC had not exercised any discretion under s 80.
[34] As Mr Millard, I think correctly, noted this line of reasoning is also the view that has been consistently taken in the District Court (Messner v Accident Compensation Corporation (District Court, Wellington, Decision 180/97, DCA 237/96, 19 May 1997, Judge Ongley) and Rakete v Accident Compensation Corporation (District Court, Decision 219/00, AI 75/00, 23 August 2000, Judge Middleton)). There is a District Court decision (Ravestein v Accident Compensation Corporation (District Court, Wellington, Decision 65/95, DCA 231/94, Judge Imrie)) which is more controversial. There, an injured person approached ACC in 1984 making a claim, but did not make that claim in writing. Whether that case was rightly decided does not arise here – here there was no claim of any character.

Evaluation

[53]It is apparent from what we have already said that we take an approach to the case which differs from that taken in the District Court and High Court in a number of key respects. In particular we do not accept that:

1. The existence of an unexercised discretion standing between a claimant and payment prevented such a claimant being "entitled to receive" compensation for the purposes of s149 of the 1992 Act.

2. The operation of s149 was confined to those who had already had their claims to compensation accepted by the Corporation prior to 1 July 1992 or to those whose claims were lodged with the Corporation prior to 1 October 1992.

3. Section 149 applies only to payments actually made prior to 30 December 1992.

[54]The fundamental reason why our approach differs from that which has found favour in the District Court and the High Court is that we have adopted a different starting point in that we have sought to interpret the original s149 in light of the provisions of the 1992 Act as first enacted.
[55]Using that starting point we have identified the inter-relationship between ss135(3) and 149 which required the class of those "entitled to receive" compensation under s149 to include claimants who had not, as at 30 June 1992, lodged claims but were to lodge claims prior to 1 October 1992. As is apparent, we cannot see a principled basis for excluding from the "entitled to receive" category those who did not lodge claims prior to 1 October 1992 but who were, eventually, to do so in a timely fashion. This category of claimant was narrow when the 1992 Act was first enacted, given the provisions of s63(2). With the retrospective amendment of s63(3), the class of potential claimants was much expanded.

The arguments of counsel

The arguments of Mr Miller for the appellants

[56]The approach which we prefer follows the key elements of the arguments advanced on behalf of the appellants by Mr Miller. He also put to us a broad range of contextual considerations. Because we agree with Mr Miller’s primary contentions in relation to the scope of s149, it is not necessary to review all the contextual arguments which he advanced.
[57]It is, however, appropriate to record and indeed recognise Mr Miller’s strong argument that it is not equitable to interpret s149 of the 1992 Act to deny seriously injured infants compensation for attendant care and his associated argument that legislation associated with the ACC scheme should receive a "generous and unniggardly interpretation", see for instance ACC v Mitchell [1992] 2 NZLR 436 at 438, and Harrild v Director of Proceedings [2003] 3 NZLR 289 at 296 and 317. We agree that this is appropriate. If this case were more closely balanced, this consideration would be of considerable materiality. It may yet be of materiality to issues associated with the regulations which we have not resolved in this judgment.

The arguments of Mr Millard for the Corporation

[58]Mr Millard’s arguments broadly went along these lines. Section 149 was a transitional provision intended to provide a period for adjustment to the less generous ACC regime introduced by the 1992 Act. In that context, s149 should be treated as applying only to payments actually made in the period down to 31 December 1992 (and later extended to 30 June 1993). This approach is supported by the 1992 and 1993 Regulations under which there could be no entitlement to payments for attendant care provided prior to any application being made to the Corporation. He went on to argue that if the appellants’ argument was correct, there was a hiatus in relation to entitlements between 30 June 1993 (when any entitlements under s80(3) of the 1982 Act could no longer be said to be of continuing application under s149 of the 1992 Act) and when applications were first made by the appellants.
[59]Our response to these submissions is largely apparent from what we have already said. The only point to which we need to make specific reference is associated with the "hiatus" argument advanced by Mr Millard.
[60]Given that we are not prepared to make a final ruling on the application of the 1993 regulations to the appellants, see paras [34] and [35] above, we should not be taken to agree that there necessarily is a hiatus as suggested by Mr Millard. But even if such a hiatus exists, we do not see it as a controlling consideration. It should be borne in mind that under the 1992 Act as first enacted, the scope for any such hiatus was limited and such scope was further narrowed when the s149 period was extended to 30 June 1993.

Disposition

[61]The only issue for us on the appeal by way of case stated relates to the application of s149 of the 1992 Act to the appellants. We answer the question posed by the case stated in favour of the appellants and direct that their claims under s80(3) be reconsidered by the Corporation in accordance with this judgment. The case stated does not require us to determine formally the entitlement of the appellants in relation to the periods between 30 June 1993 and when they made their applications and this issue must be regarded as still live.
[62]The appellants are each awarded $6,000 by way of costs, together with disbursements (including the travel and accommodation expenses of counsel if any) to be agreed and, failing agreement, to be fixed by the Registrar.







Solicitors:
John M Miller, Wellington for Appellants
Broadmore Barnett, Wellington for Respondent


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