Estate of Simpson v Accident Compensation Corporation [2007] NZCA 247; [2007] NZAR 496 (15 June 2007)

Last Updated: 16 February 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

CA74/06 [2007] NZCA 247

BETWEEN ESTATE OF SYDNEY CLAUDE SIMPSON

Appellant

AND ACCIDENT COMPENSATION CORPORATION

Respondent

CA103/06

AND BETWEEN CATHERINE MARY MATTHEWS AND BRENT JAMES ROY MATTHEWS Appellants

AND ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 31 May 2007

Court: Glazebrook, Robertson and Ellen France JJ Counsel: J M Miller and S Thistoll for Appellants

I Millard QC and P A McBride for Respondents

Judgment: 15 June 2007 at 3 pm

JUDGMENT OF THE COURT

Whether s 121(2)(b) of the [1972] Act] requires proof of actual monetary loss or expenses incurred by a person in giving help to a person who has suffered personal injury by accident before the Corporation can exercise its discretion to pay compensation, and whether the Authority erred in determining that the proper interpretation of s 121(2)(b) of the 1972 Act encompassed compensation for historical estimates of the values of assistance gratuitously provided by a family member to a claimant.

The answer is yes.

B The first question in the Matthews appeal is:

On the facts set out in the judgment, was the injury to Brent Matthews of such a nature that he must have constant personal attention so that he was entitled to be paid in respect of his necessary care in his place of abode or an institution in terms of s 80(3)?

The answer is no.

C The second question in the Matthews appeal is:

To the extent that Mrs Matthews has provided services:

(a) in giving help to an injured person by reason of the injury; (b) which have not already been compensated for by the

previous reimbursement of lost wages; and

(c) which were reasonable,

is this an identifiable and reasonable expense or loss incurred by

Mrs Matthews in terms of s 80(2)(b)? The answer is no.

Introduction

[1] These two cases were, by consent, heard together. They both relate to claims made for care given by family members to persons subject to cover under the Accident Compensation regime.

[2] In the Simpson case, a claim was made (and eventually declined) in respect of the actual and reasonable expense incurred or loss suffered by Mrs Simpson in providing assistance to her injured husband under s 121(2)(b) of the Accident Compensation Act 1972 (1972 Act).

[3] In the Matthews case, there was a claim by Mrs Matthews for reasonable expense or loss incurred by her in giving help to her son pursuant to s 80(2)(b) of the Accident Compensation Act 1982 (1982 Act), or alternatively a claim by Brent Matthews himself under s 80(3) of the 1982 Act asserting that the injury he had sustained required that he had constant personal attention.

[4] Mr Miller succinctly identified the issues as:

(a) whether the wording “any identifiable actual and reasonable expenses [or losses] incurred by the person in giving help to the injured person” in s 121(2)(b) of the 1972 Act and “any identifiable and reasonable expenses or losses incurred by the person in giving help” in s 80(2)(b) of the 1982 Act allow for the payment of compensation for gratuitous attendant care provided to injured claimants by their family members; and

(b) whether the wording “constant personal attention”, and “the necessary care of the person in any place of abode or institution” in s 121(3) of the 1972 Act and s 80(3) of the 1982 Act applies to the situation in the Matthews case where the mother provided 12 hours a day care and supervision to her brain damaged son. The appellant argues that it does. Otherwise there is no provision in the legislation to pay for less

than 24 hour gratuitous care if the ACC is correct on s 121(2)(b) and

_{s 80(2)(b).}

Background

(a) Simpson

[5] On 27 March 2006 Goddard J granted leave to appeal to this Court by way of case stated against her decision of 3 November 2005 on the following question of law:

Whether s 121(2)(b) of the [1972 Act] requires proof of actual monetary loss or expenses incurred by a person in giving help to a person who has suffered personal injury by accident before the Corporation can exercise its discretion to pay compensation, and whether the Authority erred in determining that the proper interpretation of s 121(2)(b) of the 1972 Act encompassed compensation for historical estimates of the values of assistance gratuitously provided by a family member to a claimant.

[6] Goddard J described the factual background in [12] of her judgment as:

In 1974 Mr Simpson, then aged 54 years, was injured in a motorcycle accident and suffered fractures to his right leg and arm. Ultimately his right leg was amputated below the knee. He claimed for, and was provided with, ACC cover. In 1976 Mr Simpson returned to work for his former employer. In December 1983 he had a fall and injured his left shoulder. He retired from work in 1984 at the age of 64 years. In 1994 he was assessed as able to drive a motor vehicle, able to walk unaided inside and to walk with the assistance of a stick or crutch outside. He was independent in his personal care needs. He died in 1994 at the age of 74 years. From the time of his accident in 1974 until his death in 1994 Mr Simpson received compensation under the Act. However, in March 2001, his Estate submitted an application for “retrospective attendant care” in respect of “the great deal of assistance [Mrs Simpson] had given her husband over the years which was not recognised by ACC”.

(b) Matthews

[7] In the Matthews case, on 15 May 2006 Miller J granted leave to appeal to this Court by way of case stated on a question of law arising from a decision of MacKenzie J delivered on 31 March 2006. The questions were:

(a) On the facts set out in the judgment (being the facts as summarised in paragraphs 1, 2, 3, and 12 above), was the injury to Brent Matthews of such a nature that he must have constant personal attention so that he was entitled to be paid in respect of his necessary care in his place of abode or an institution in terms of s 80(3)?

(b) To the extent that Mrs Matthews has provided services:

(i) In giving help to an injured person by reason of the injury;

(ii) Which have not already been compensated for by the previous reimbursement of lost wages; and

(iii) Which were reasonable,

is this an identifiable and reasonable expense or loss incurred by

Mrs Matthews in terms of s 80(2)(b)?

[8] MacKenzie J described the factual background at [2] as:

Brent Matthews was seriously injured on 13 September 1985 when he was aged five, when the bicycle he was riding collided with a car and he suffered major injuries, including a fractured skull and fractured leg. As a result of the injuries, he spent some time in the intensive care unit at Dunedin Hospital. He was discharged from hospital on 17 October 1986 but continued to receive treatment and began a programme of physical rehabilitation. His mother gave up her job in October 1986 in order to care for him. He returned to school in 1987, but suffered ongoing disabilities arising from his injuries.

[9] Mrs Matthews gave up her job to look after Brent. ACC paid her $50,504.51 in compensation for her lost wages. The s 80(2)(b) claim is made in relation to additional attendant care given by Mrs Matthews.

Issues

Do ss 121(2)(b) and 80(2)(b) allow for payment of compensation for gratuitous attendant care?

[10] Section 121(2)(b) of the 1972 Act gives the Commissioner (ACC) a discretion to pay any person compensation for “any identifiable actual and reasonable expenses or losses incurred by the person in giving help to the injured person”. Section 80(2)(b) of the 1982 Act is similarly worded giving the Corporation (ACC) a discretion to compensate for “any identifiable and reasonable

expenses or losses incurred”. Nothing turns on the slight difference in the wording used in the two sections.

[11] The question posed by Goddard J in relation to s 121(2)(b) and the second question posed by MacKenzie J in relation to s 80(2)(b) are substantially the same and we will answer them together.

[12] The issue is whether the wording of ss 121(2)(b) and 80(2)(b) requires the identification of pecuniary loss or expense actually incurred before ACC can exercise its discretion to pay compensation.

[13] The two sections must be interpreted in accordance with the natural meaning of the words used by Parliament in the context of the legislative scheme when viewed as a whole.

[14] We have concluded that compensation is not available under ss 121(2)(b) and

80(2)(b) for the gratuitous attendant care provided in these cases based on three key factors.

[15] First, the general headings to both ss 121 and 80, “Compensation for pecuniary loss not related to earnings”, clearly envisages that any claim must relate to economic loss. The tripartite structure of the both ss 121 and 80 indicate that the focus of the sections is on compensation for economic loss. Subsection (1) is concerned with restricting the types of losses that an injured claimant can claim as flowing from the injury. Subsection (2) with the situation where either, others in the injured person’s household have lost the services of the injured person, or others provide assistance to the injured person. Subsection (3) deals with the provision of necessary care to an injured person who requires constant attention.

[16] Secondly, the words “expenses or losses” in normal parlance would require proof of a pecuniary loss. This point was made by Jeffries J in XY v ACC (1984)

[1984] NZHC 21; 4 NZAR 219 at 223 (HC):

The words “expenses” and “losses” have many shades and meanings but in the context of a section in an Act concerned with compensation for personal injury the concept is that of personal monetary detriment and loss.

[17] Loss of opportunity will only amount to an economic loss capable of attracting compensation if the person claiming is able to prove that the loss of opportunity gave rise to direct pecuniary loss. It is not enough if a claimant can only establish that they have spent time caring for an injured person when they could have been doing something else. It must be established that the claimant gave up a financial opportunity to care for the injured person. This approach is supported by the use of the word “incurred”. In the case of Mrs Matthews, she has already been compensated for her loss of earnings. She has not been able to point to any other financial loss suffered because of the time she spent looking after her son. Likewise, Mrs Simpson has not established that the time she spent looking after her husband would have otherwise been spent in a manner which would have benefited her financially.

[18] Mollgaard v AIRC [1999] 3 NZLR 735 (HC), upon which the appellants rely, has no application in this case. It involved a claim by an injured person himself under the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 which has a different wording and context to that in issue here. Mr Mollgaard’s mother, who was made a welfare guardian and provided care, did so in the expectation that she would get payment from ACC. The Court found that, as it was necessary to remove Mr Mollgaard from the institution and place him at home, combined with Mrs Mollgaard’s status as a welfare guardian, the injured person’s estate had a legal liability to provide compensation to Mrs Mollgaard.

[19] Thirdly, the words “identifiable” and “actual” require that the loss or expense be clearly definable. An ability to prove the amount of hours spent caring for an injured person is not enough without evidence of how the loss of time caused a financial detriment. A claimant must have a tangible monetary loss or expense as a result of help and care given to the injured person.

[20] The questions of law stated with regard to this point in each case must be answered against the claimants.

Does the wording “constant personal attention” apply to situations where less than

24 hour care is required?

[21] Section 80(3) of the 1982 Act provides that ACC may compensate a person suffering from a personal injury where they require “constant personal attention” in respect of “the necessary care of the person in any place of abode or institution”.

[22] The key issue in the Matthews case is whether “constant personal attention”

can be interpreted as including care for intermittent periods comprising less than

24 hours per day.

[23] We are satisfied that this phrase means that an injured person requires some level of personal care over a 24 hour period. The level of care can fluctuate over the

24 hour period: AIRC v Campbell [1996] NZAR 278 at 285 (HC). The phrase does not mean that nothing less than 24 hour per day attention will meet the test. However, as noted by MacKenzie J, “the word ‘constant’ requires some level of attention over the full 24-hour period and that attention is provided only with such interruptions as do not interrupt continuity”: at [19]. The focus is on the level of care required by the injured person and not on who provides it. The fact that a person goes to a respite place or school does not break continuity if the injured person needs constant attention during that period. The applicability of s 80(3) is a factual inquiry of whether the heightened attention required is of such a level as to amount to constant personal attention.

[24] As this is an appeal by way of case stated, we are only able to assess points of law. We are satisfied that there was no error in the test applied by the Judge.

[25] We note that, if a wider appeal had been available, it would not have succeeded. Based on MacKenzie J’s findings of fact, the available test is not met. Brent clearly required an increased level of personal attention because of his injuries, but this cannot be described as “constant”. Brent was able to attend school, play sport and socialise at church functions. During this time it cannot be said that Brent needed personalised care. Compensation is only available under s 80(3) if the constant care is “necessary” and this was not the case.

[26] This question must also be answered against the claimants’ interest.

Postscript

[27] Mr Miller frankly accepted in his oral submissions that his contention was that the Act should be interpreted so that where a family member provided care or assistance (which might otherwise have to be contracted for) compensation should be available.

[28] We make no comment on the underlying philosophy of his submission, but the clear wording of the sections of the respective Accident Compensation Acts relied on by the appellants do not permit such an approach. Nor do we determine whether, under s 121(1) of the 1972 Act or s 80(1) of the 1982 Act, the injured person could maintain a claim for compensation in respect of such services. It is not the manner in which these cases have been advanced at any stage and given the limits of the case stated inquiry we are not able to express any view on the point.

Result

[29] The question in the Simpson appeal is:

Whether s 121(2)(b) of the [1972] Act] requires proof of actual monetary loss or expenses incurred by a person in giving help to a person who has suffered personal injury by accident before the Corporation can exercise its discretion to pay compensation, and whether the Authority erred in determining that the proper interpretation of s 121(2)(b) of the 1972 Act encompassed compensation for historical estimates of the values of assistance gratuitously provided by a family member to a claimant.

The answer is yes.

[30] The first question in the Matthews appeal is:

On the facts set out in the judgment, was the injury to Brent Matthews of such a nature that he must have constant personal attention so that he was entitled to be paid in respect of his necessary care in his place of abode or an institution in terms of s 80(3)?

The answer is no.

[31] The second question in the Matthews appeal is:

To the extent that Mrs Matthews has provided services:

(a) in giving help to an injured person by reason of the injury;

(d) which have not already been compensated for by the previous reimbursement of lost wages; and

(e) which were reasonable,

is this an identifiable and reasonable expense or loss incurred by

Mrs Matthews in terms of s 80(2)(b)? The answer is no.

Solicitors:

John Miller Law, Wellington, for Appellants

McBride Davenport Jones, Wellington, for Respondents