|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 31 January 2018
|
Hearing: |
2 February 2016 |
|
Court: |
Stevens, French and Winkelmann JJ |
|
Counsel: |
H B Rennie QC, A S Butler and C J Curran for Appellant
J M Miller and K M Eckersley for Respondents |
|
Judgment: |
JUDGMENT OF THE COURT
Was the High Court
erroneous in law when it determined that a claim for payment for unpaid
attendant care is permitted under s 121(1)
of the Accident Compensation Act
1972 and s 80(1) of the Accident Compensation Act 1982?
Yes.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
[1] Can an individual who has suffered a personal injury by accident claim for compensation, under either the 1972 or the 1982 Accident Compensation Acts, for care provided by family on an unpaid basis? That is the issue in this appeal.
[2] This is an appeal from a decision of MacKenzie J in the High Court in which he held the claimants could claim for such compensation.[1] Justice MacKenzie granted leave to appeal to this Court by way of case stated.[2] The question stated by the High Court for determination by this Court is as follows:
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982?
Background
The claimants
[3] Each of the 20 respondent claimants had cover under the 1972 and 1982 Acts. Each had suffered a personal injury by accident, resulting in injuries of such severity that the claimants had limited ability to care for themselves. Although the Accident Compensation Corporation (ACC) paid out various entitlements in respect of their injuries, it did not carry out assessments as to the care the claimants would need in the community. Nor did it inform them or their caregivers of the rehabilitative assistance by way of attendant care that was available under the two Acts. Rather, the care and assistance required by the claimants as a result of their injuries was provided on an unpaid basis by family members.
[4] The claims the subject of this appeal were made under either s 121(1) of the 1972 Act or s 80(1) of the 1982 Act, depending on the timing of the accident. Section 121(1) provides as follows:
121 Compensation for pecuniary loss not related to earnings
(1) Where a person suffers personal injury by accident in respect of which he has cover under this Act, or where a person dies as a result of personal injury so suffered, the Commission, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him, or in the event of his death to his administrator, in addition to any other compensation and rehabilitation assistance to which he is entitled under this Act, compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury or death, not being—
(a) Any expense or loss in respect of damage to property; or
(b) Any expense or loss incurred after the death of that person in respect of the administration of his estate; or
(c) Any expense or loss arising from damage in respect of which, or to the extent to which, no payment is to be made under subsection (1) or subsection (1A) of section 110 of this Act, by reason of subsection (2) of that section; or
(d) The loss of an opportunity to make a profit; or
(e) Any loss arising from inability to perform a business contract; or
(f) Any loss that has not for the time being actually occurred, whether or not the amount thereof is ascertainable before it occurs; or
(g) Any expense or loss in respect of or towards payment of which compensation is otherwise payable under this Act.
[5] It is accepted that s 80(1) of the 1982 Act is identical for all material purposes to s 121(1) as is the relevant statutory context. For ease of expression we refer to the text of the 1972 Act and s 121(1) only, but our consideration of the issues encompasses issues arising under the 1982 Act and s 80(1) as well.
[6] It is not in dispute that, if properly advised as to their rights and if given a formal needs assessment, at least some of the claimants would have been entitled to receive assistance, in one way or another, with the costs of attendant care compensated under the Acts. If any of the claimants were in need of constant personal attention because of their injury, ACC had a discretion to pay such amounts as it saw fit “in respect of the necessary care of the person” under s 121(3). ACC also accepts that, if a caregiver had contracted with the claimant for the provision of the care in return for payment, the claimants might have been eligible under s 121 for compensation from ACC in respect of payments made as they would have been “actual and reasonable expenses” for the purposes of s 121(2)(b), directly resulting from the injury or death.
[7] With the repeal of the 1982 Act, different criteria applied for entitlement to payment for attendant care, and many of the claimants have received payments connected to their need for attendant care under later Acts. The claimants and their families now also seek back-dated payment for the unpaid care provided before the creation of these new entitlements. Most claims in that regard were initially made by the caregivers under s 121(2)(b) of the 1972 Act or s 80(2)(b) of the 1982 Act. Those provisions gave ACC a discretion to pay compensation to a person “for any identifiable actual and reasonable expenses or losses incurred by the person in giving help to the injured person”. However, this Court’s decision in Estate of Simpson v Accident Compensation Corporation precluded claims by caregivers for unpaid care under those provisions.[3] When rejecting those claims the Court recorded that it did not determine whether the injured person could themselves maintain a claim for compensation under s 121(1).[4]
History of this proceeding
[8] Following the delivery of that decision, the claimants lodged fresh claims with ACC for the unpaid care they had been provided, this time under ss 121(1) and 80(1). They said the unpaid attendant care was a “proved loss” directly resulting from the claimants’ injury and therefore ACC had discretion to pay compensation for it. ACC declined to pay the claimants on several grounds, including on the ground that eligibility under s 121(1) depended on proof of expenses or losses of a pecuniary nature and there was no such loss here.
[9] ACC’s decision was upheld on review. On an appeal of that decision the Accident Compensation Appeal Authority held a claim for payment for unpaid care by the injured person was permitted under s 121(1), that this interpretation was congruent with the purposes of the Acts and the objectives of the rehabilitative provisions, and that nothing in later legislation prevented ACC making such payment to the claimants in respect of the care they had received.[5]
[10] ACC appealed that decision to the High Court, where again the claimants were successful.[6] Justice MacKenzie held the loss of bodily function that gives rise to a need for attendant care is on the ordinary meaning of the words, a loss to the injured person. He said:[7]
... I consider that the loss of bodily function for which the attendant care and assistance is necessary is a “loss” for the purposes of subs (1). It is not, on that analysis, necessary to examine whether or not the injured person is under a legal obligation to pay the cost of the attendant care. From feelings of humanity, compassion, and love, a family member may provide care to the injured person which goes beyond the bounds of the legal obligations which would apply to the provision of that care on a commercial basis. That care will alleviate, to a limited extent, the consequences for the injured person of the loss of bodily function. In this way, the loss suffered by the injured person will be spread in part across the wider family. The total loss arising from the loss of bodily function nevertheless remains a loss which is to be compensated under the accident compensation scheme.
The appeal
[11] Mr Rennie QC for ACC submits the compensation for loss of bodily function the Judge allowed is compensation for non-economic loss and that there are clear indications in the language employed in the Acts that “proved losses” must mean economic (pecuniary) loss. It is a strained reading of the statute that claimants be able to receive for their own benefit monies for care for which they were not liable to pay.
[12] Mr Rennie argues the Judge’s decision cut across an explicit statutory scheme that creates clearly defined entitlements to compensation for noneconomic loss and expressly prohibits any other compensation for that type of loss. This scheme, he says, reinforces what appears from the language of s 121: it is a section with a narrow purpose, essentially to allow for reimbursement of pecuniary or financial losses.
[13] Mr Miller for the claimants supports the reasoning contained in the High Court judgment. He argues the principal change the 1972 ACC reforms was intended to effect was the creation of a “no fault” regime, but otherwise Parliament intended by that Act to replicate compensation available at common law at the time. At common law an injured person could recover compensation in respect of the need for care, whether or not they had to pay for the care.[8] A “proved loss” is capable of bearing the interpretation placed upon it by the Judge, and it should have that interpretation, consistent with the “social reform” purpose of the legislation. To find otherwise results in anomalous and unjust outcomes.
Analysis
[14] The question for this Court is the proper interpretation of two materially identical statutory provisions. Pursuant to s 5 of the Interpretation Act 1999, their meaning must be ascertained from their text and in light of their purpose.[9] Even if the meaning of the text may appear plain in isolation of purpose, that meaning must be cross-checked against purpose in order to achieve the requirements of s 5. As the Supreme Court said in Commerce Commission v Fonterra Co-operative Group Ltd:[10]
In determining purpose the court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
[15] The Accident Compensation Acts, of which there have been more than a few, are some of the most litigated pieces of legislation. In this particular context statutory provisions often have to be interpreted and certainly continue to be applied years, even decades, after their repeal. The Acts are frequently amended. There is, accordingly, discussion to be had as to the approach to be taken to the interpretation of these Acts, although it should be observed that this discussion reflects no more than the application of the approach described in Fonterra in a particularly fraught statutory context. For example, in Queenstown Lakes District Council v Palmer this Court said of the task of interpreting a provision in ACC legislation:[11]
The subsection must be interpreted as a whole having regard, not only to the language that is used, but also to the context of the subsection, to the scheme and purpose of the Act, with reference, if that is necessary, to the history and policy of the legislation and to the consequences of the interpretation which is under consideration.
[16] We therefore begin with the text of the particular section and subsection and the associated heading. Section 121 appears within Part 6 of the Act, entitled “Compensation”, and has its own heading: “Compensation for pecuniary loss not related to earnings”.[12] The relevant part of s 121 can be shortly described as conferring discretions upon ACC to pay compensation to the injured person (s 121(1)) or to third parties (s 121(2)) in respect of certain losses and expenses resulting from the injury and also a discretion to pay for attendant care if “the injury is of such a nature [the injured person] must have constant personal attention” (s 121(3)). These are all gateway provisions, in that they create a discretion for ACC but leave ACC to decide whether and how much payment is made.
[17] If the words “proved losses” in s 121(1) are viewed in isolation, they are capable of encompassing damages for loss of bodily function as the Judge found. But the words gain definition from the section heading, which states the purpose of the section is to allow compensation for pecuniary loss. This is consistent with what seems to us to be a focus in the language employed in the subsection upon loss or expenses of a concrete or quantifiable nature: the expenses have to be “actual” and the losses have to be “proved”.[13] The express exclusions from cover contained in s 121(1)(a)–(g) all describe losses of a pecuniary nature. These are all strong textual indications that the expression “proved losses” is to be read as limited to proved losses of a pecuniary nature.
[18] There is also express provision in s 121 for payment for attendant care. Section 121(2)(b) allows ACC to pay compensation to those who provide help to an injured person while the person is suffering from incapacity, in respect of any “identifiable actual and reasonable expenses or losses incurred by the person” in giving that help. In Estate of Simpson v Accident Compensation Corporation, this Court held that to qualify for compensation under s 121(2)(b) the caregiver had to show not only that they had provided care to the injured person but also that this caused them a direct pecuniary loss through lack of opportunity.[14] In addition to this, s 121(3) allows ACC to pay for attendant care if the injured person is in need of constant personal attention. We see these provisions as relevant as we think it unlikely that, having created a detailed and relatively constrained discretionary regime for compensation for attendant care, Parliament would have intended to also create in s 121(1) an undefined, largely unconstrained discretion for ACC to pay for attendant care.
[19] In similar vein, other sections within the Act provide for compensation for loss or impairment of bodily function, which is how MacKenzie J defined the head of loss under which the claimants could recover.[15] Section 119 of the 1972 Act is headed “Compensation for non-economic loss related to permanent loss or impairment of bodily function”, and provides for the payment of lump sum amounts as compensation for permanent loss or impairment of bodily function. The heading to s 120 is “Compensation for other non-economic loss” and the section allows for lump sum payments for pain and mental suffering or loss by the person of amenities or capacity for enjoying life caused by the personal injury by accident.
[20] Perhaps the most fundamental objection to the interpretation adopted by the Judge is the prohibition in s 120(8), which provides:
No compensation other than that specified in this section and in section 119 of this Act shall be payable to any person under this Act in respect of noneconomic loss.
[21] We agree with Mr Rennie that this statutory scheme and the s 120(8) prohibition is inconsistent with the interpretation adopted by the Judge. Mr Miller argues s 120(8) does not apply as the particular loss of bodily function can properly be characterised as an economic loss. He drew a distinction between pain and suffering, a harm or loss that cannot be measured in monetary terms, and loss of bodily function, which generates a need for attendant care measurable in monetary terms. However his argument is not persuasive when the Act plainly treats both pain and suffering and loss of bodily function as types of non-economic loss.
[22] An interpretation of s 121(1) that limits its application to reimbursing pecuniary expenses and losses is also consistent with the interpretation adopted in earlier decisions of the courts. In XY v Accident Compensation Corporation Jeffries J, when discussing s 121(1), said:[16]
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.
[23] Mr Miller submits XY should not be followed on this point in this case, as the facts there were very different. The case concerned a claim under s 121(1) for the cost of maintaining a healthy child, born after a failed tubal diathermy operation. Although we acknowledge the facts in XY were very different, the passage set out above is not naturally to be limited to those particular facts, and we note it was referred to with approval by this Court in Simpson.[17]
[24] Justice MacKenzie distinguished the Court of Appeal decision in Simpson on the ground the provisions the Court there construed, s 121(2)(b) and s 80(2)(b), used the language “losses incurred”, a phrase he said suggested a loss quantifiable in money.[18] The voluntary provision of attendant care to an injured family member was not, on the ordinary meaning of the words, a loss incurred by the caregiver. The Judge said the focus of s 121(1) was different. Its purpose was “to provide compensation to the injured person in respect of a particular consequence of their injury”.[19] That compensation was intended to be supplementary to the other provisions of the Act, which specify compensation payable in respect of an injury.
[25] We acknowledge that in Simpson this Court did not have before it a claim under s 121(1), and it expressly declined to state a view in relation to the merits of such a claim.[20] Nevertheless, we consider much of its reasoning applies to the interpretative exercise MacKenzie J had to undertake, and that the reasoning is not properly distinguishable. The Court in Simpson gave three principal reasons for reaching its decision. The first was that the general headings and overall structure of the sections makes clear the focus is on economic loss.[21] Secondly, the expression “expenses or losses” in normal parlance requires proof of pecuniary loss.[22] Finally, the words “identifiable” and “actual” require that the loss or expense be clearly definable.[23] The Court said “[a]n 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”.[24] We do not see any significance for these purposes in the slightly different wording utilised in the subsections before the Court in Simpson, and consider each leg of this reasoning applies with equal force to s 121(1).
[26] Having then reached a view as to the meaning of the section by reference to its language and its place within the Act, it is necessary to cross-check that against the purpose of the Act and the particular provision under consideration.
[27] Mr Miller submits the Accident Compensation Acts were socially curative legislation, intended by Parliament to confer upon all accident victims, irrespective of fault, the benefit of compensation available at common law for loss and damage to the injured person caused by an accident. Applying that approach to s 121(1), he says Parliament can be taken to have entrenched in that provision the English Court of Appeal decision in Donnelly v Joyce, which treated the injured person’s need for care as a loss for which that person should be compensated, whether that care was being provided by family members, and whether on a paid or unpaid basis.[25]
[28] However, there is nothing to support Mr Miller’s submission that the purpose of the Act was to entrench existing common law provisions for those injured by accident. The Act created a detailed regime of defined benefits, abolished common law actions for damages for personal injury, and by these means it replaced the common law. At a time closer to the thinking that drove these reforms, one commentator described the principal purpose as follows:[26]
The central feature of the new Act is that compensation is not reserved for those who can prove that their injuries were caused by a breach of duty owed to them by another: compensation is available to all accident victims with personal injury regardless of fault, and it is paid not by the individual who caused the damage, but, as a matter of Government policy, by a corporation created for the purpose. However the new Act does not purport to grant to the injured person complete restitutio in integrum as that is understood in the old law; the scheme is to provide a system which cushions the loss flowing from the accident injury. The benefit, monetary and otherwise, which an accident victim will now receive for his injuries is restricted by the terms of the legislation. This restriction is the price paid for having comprehensive cover available for all, regardless of fault, in place of full restitution available only for the few who can prove negligence.
[29] Another difficulty with the claimants’ argument is that the common law in 1972 was not as clear cut as Mr Miller would have it. He argues s 121(1) was intended to capture the common law position expressed in Donnelly v Joyce. In that case it was held the need for care was the injured person’s loss and that loss was recoverable as damages. It did not matter, so far as the defendant’s liability went, whether the needs of the plaintiff had been supplied at the plaintiff’s own expense or by the charitable contribution of another.[27] While the approach in Donnelly does reflect the approach to the interpretation of s 121(1) adopted by MacKenzie J, that case was not decided until after the enactment of the 1972 legislation. Before that time the common law could not be said to be settled, with a number of conflicting decisions. The previously uncertain state of the law was described in Donnelly and even Donnelly was not itself destined to be the final word on the issue.[28]
[30] In Hunt v Severs the House of Lords expressly disapproved of the way in which the Court in Donnelly characterised the loss.[29] It declined to treat the need for care provided gratuitously as the loss of the plaintiffs, finding that the injured plaintiff who recovered damages for the need for ongoing care held those damages on trust for the caregiver. Treating the need for care that is provided on an unpaid basis by family as loss was, of course, a necessary step in MacKenzie J’s reasoning.
[31] The Judge also placed particular reliance in his reasoning upon the decision of a full court of the High Court in Mollgaard v Accident Rehabilitation and Compensation Insurance Corporation.[30] That Court rejected a narrow conception of the phrase “expenses actually incurred” in Regulations passed under the Accident Rehabilitation and Compensation Insurance Act 1992, and held that in an economic sense “cost” was incurred in the form of care provided by the injured person’s mother, although there was no contractual liability to pay her.[31]
[32] Justice MacKenzie said, although the case concerned a particular regime arising under different legislation, that did not detract from the general proposition that a narrow interpretation of the ACC legislation was inappropriate.[32] He also considered that, if anything, the case before him was stronger than Mollgaard.[33] In the latter case the relevant provision required that there be “expenses actually incurred”, whereas ss 120(1) and 80(1) require “proved losses”.
[33] We do not agree that Mollgaard is authority for the proposition that a narrow interpretation of s 121 is inappropriate. Some context helps with understanding why the case is properly distinguished from the present. The Regulations before the Court in Mollgaard required ACC to establish a social rehabilitation programme for the claimant. The Regulation at issue provided that in the time gap between the receipt of the claim and the finalisation of the programme, the claimant was entitled to receive payments provided for in the social rehabilitation programme in respect of “expenses actually incurred”.[34] As the Court stated, the interpretation it adopted was shaped by the purpose of the Regulations it was interpreting.[35] These were Regulations promulgated because of concerns that the needs of severely impaired persons were not being addressed by the existing regime. The Regulations were patently remedial, and, as the Court said, required a fair, large and liberal construction to ensure they were effective in addressing the deficiency in the earlier regime.[36]
[34] Entirely different considerations apply in the interpretation of s 121, which established a different compensation regime in respect of care, and which utilised quite different language.
[35] Mr Miller also argues the interpretation suggested by ACC would be a blot on the law, favouring the rich and the well-connected, who can afford advice as to their rights and help with entering into proper arrangements (such as contracts for service) to ensure they can claim for the attendant care. He says it should not lightly be assumed that Parliament intended to create such injustice or anomaly, and refers to decisions he says show the ACC scheme should receive a generous interpretation.[37]
[36] It is not the particular interpretation that causes anomalous outcomes but rather how the statute was administered at the time. There was provision under s 121 for compensation for the need for attendant care. It is not disputed that, because of how the scheme was administered at the time by ACC, this was never brought to the attention of the claimants or their families. Nor did ACC initiate the assessments that would have enabled the claimants to access these entitlements.
[37] Mr Miller argues that, in light of these failings by ACC, the socially curative nature of the legislation requires the interpretation he advocates. It is needed to fix the injustice caused by ACC’s poor history of administering the scheme for the payment for attendant care.[38]
[38] We have no doubt the approach taken by ACC in the 1970s and 1980s caused hardship to the claimants and their families. But this Court cannot adopt an interpretation of the section, unsupported by its language and purpose, to mitigate this harm.
Result
[39] We answer the question on appeal as follows:
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982? Yes.
[40] The appeal is allowed.
[41] There is no order for costs as ACC did not seek costs.
Solicitors:
Russell McVeagh, Wellington for
Appellant
[1] Accident Compensation Corporation v Algie [2014] NZHC 409.
[2] Accident Compensation Corporation v Algie [2014] NZHC 1582. Leave to appeal was granted under s 112 of the Accident Compensation Act 1982.
[3] Estate of Simpson v Accident Compensation Corporation [2007] NZCA 247, [2007] NZAR 496.
[4] At [28].
[5] Algie v Accident Compensation Corporation [2013] NZACA 1.
[6] Accident Compensation Corporation v Algie, above n 1.
[7] At [36].
[8] Donnelly v Joyce [1973] EWCA Civ 2; [1974] QB 454 (CA).
[9] Section 5 applies to legislation that predates the Interpretation Act: s 4 of the Interpretation Act 1999.
[10] Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22]. Footnote omitted.
[11] Queenstown Lakes District Council v Palmer [1998] NZCA 190; [1999] 1 NZLR 549 (CA) at 553.
[12] Marginal notes and section headings may be considered in ascertaining the meaning of an enactment: s 5 of the Interpretation Act 1999.
[13] Estate of Simpson v Accident Compensation Corporation, above n 3, at [15]–[16].
[14] Estate of Simpson v Accident Compensation Corporation, above n 3, at [17]–[19].
[15] Accident Compensation Corporation v Algie, above n 1, at [22].
[16] XY v Accident Compensation Corporation [1984] NZHC 21; (1984) 4 NZAR 219 (HC) at 223.
[17] Estate of Simpson v Accident Compensation Corporation, above n 3, at [16].
[18] Accident Compensation Corporation v Algie, above n 1, at [20].
[19] At [21].
[20] Estate of Simpson v Accident Compensation Corporation, above n 3, at [28].
[21] Estate of Simpson v Accident Compensation Corporation, above n 3, at [15].
[22] At [16].
[23] At [19].
[24] At [19].
[25] Donnelly v Joyce, above n 8.
[26] AP Blair Accident Compensation in New Zealand (2nd ed, Butterworths, Wellington, 1983) at 1.
[27] Donnelly v Joyce, above n 8, at 462.
[28] For a discussion of the state of the authorities at the time, see Donnelly v Joyce, above n 8, at 463–467.
[29] Hunt v Severs [1994] UKHL 4; [1994] 2 AC 350 (HL) at 361.
[30] Mollgaard v Accident Rehabilitation and Compensation Insurance Corporation [1999] 3 NZLR 735 (HC).
[31] At [34] and [39].
[32] Accident Compensation Corporation v Algie, above n 1, at [31].
[33] At [31].
[34] Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994, reg 17(b).
[35] Mollgaard v Accident Rehabilitation and Compensation Insurance Corporation, above n 30, at [26].
[36] At [26].
[37] Accident Compensation Corporation v Mitchell [1991] NZCA 162; [1992] 2 NZLR 436 (CA) at 438–439; Harrild v Director of Proceedings [2003] NZCA 125; [2003] 3 NZLR 289 (CA) at [19] and [130].
[38] Mr Miller also argues ACC has taken inconsistent positions with respect to eligibility under these provisions. ACC does not accept that it has. This issue is not material to the resolution of the question of statutory interpretation with which we are concerned so we do not address it.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2016/120.html