Larkin v Accident Compensation Corporation [2020] NZCA 597 (26 November 2020)

Last Updated: 1 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA348/2020 [2020] NZCA 597

	BETWEEN	KURTIS LARKIN Applicant
	AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:	Clifford and Courtney JJ
Counsel:	J M Miller and T W R Lynskey for Applicant H B Rennie QC and C J Curran for Respondent
Judgment: (On the papers)	26 November 2020 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

• [1] Kurtis Larkin was born on 4 January 1992. At birth he suffered a very serious and permanent brain injury after foetal blood was lost into maternal circulation, causing oxygen deprivation which has manifested in cerebral palsy, quadriplegia and epilepsy. Mr Larkin has seizures every day and is dependent on others for all aspects of daily life.
• [2] Mr Larkin’s injury was the result of a treatment injury and he was entitled to compensation under the then Accident Compensation Act 1982 (the 1982 Act). However, Mr Larkin’s mother, Ms Hoare, was not made aware of this until 2005. A claim lodged at that time was accepted by the Accident Compensation Corp (ACC) following a District Court judgment in 2011.^[1] Mr Larkin has received attendant care funded by ACC since 16 May 2011.^[2]
• [3] The issue in this application is the extent to which ACC may retrospectively compensate Mr Larkin for attendant care he received before that date. As Mr Larkin’s claim was filed when the Accident Compensation Act 2001 (the 2001 Act) was in force,^[3] the issue falls to be determined by the transitional provisions of that Act and its predecessors. ACC believes these only permit Mr Larkin to be paid from his birth to 30 June 1993 and from 1 April 2002 onwards, with the intervening period excluded. Mr Larkin, represented in these proceedings by Ms Hoare as his litigation guardian, believes the legislation permits ACC to compensate him for the entire time.
• [4] Successive decisions in the District Court and High Court found in favour of ACC.^[4] Mr Larkin now seeks special leave to appeal to this Court.^[5]

Background

Legislative framework

• [5] This application draws upon four iterations of the accident compensation legislation:

(a) the 1982 Act, which was in force at the time Mr Larkin suffered his injury;

(b) the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act), which entered into force on 1 July 1992;

(c) the Accident Insurance Act 1998 (the 1998 Act), which entered into force on 1 July 1999; and

(d) the 2001 Act, which entered into force on 1 April 2002 and was operative when Mr Larkin filed his claim.

• [6] The starting point is the 2001 Act, which provides Mr Larkin will have cover only if he satisfies the requirements of both the 1982 Act and the 2001 Act.^[6] Mr Larkin does satisfy those requirements. Consequently, under s 83 of the 2001 Act, ACC must provide attendant care from the date of the claim, and may backdate payments to a date no earlier than the commencement of the 2001 Act.^[7] ACC agreed to backdate payments and has accordingly compensated Mr Larkin for the attendant care he received from 1 April 2002 to 15 May 2011 (when it began funding the care directly).
• [7] Whether ACC may pay Mr Larkin for care before 1 April 2002 depends on the application of the 1982 Act in the transitional provisions of the 1992, 1998 and 2001 Acts. It is convenient now to reverse the approach and explain these in chronological order.
• [8] Mr Larkin’s original entitlement can be found in s 80(3) of the 1982 Act, which would have applied had a claim been made very soon after his birth. That section provided:

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.

• [9] That entitlement did not apply to Mr Larkin for long, because the 1992 Act took effect six months later and substantially revised the accident compensation scheme, rendering it less generous in many respects. The transitional provisions in s 149 provided for a graduated adjustment process, in which claimants with greater needs were granted additional time to prepare for the imposition of the new scheme:^[8]

149 Compensation for pecuniary loss not related to earnings

(1) 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.

(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); or

...

(3) Notwithstanding subsections (1) and (2) of this section, where any person was receiving compensation under section 121 of the Accident Compensation Act 1972 or section 80 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.

(Emphasis added.)

• [10] Thus, claimants affected by this section generally saw their payments reduce after 31 December 1992 pursuant to subs (1). Those who required attendant care enjoyed a six‑month deferral under subs (2) and saw their payments reduce after 30 June 1993. And those who were especially vulnerable, and were in receipt of $350 or more of weekly attendant care, were grandfathered into the old scheme under subs (3) and never saw their payments reduce.
• [11] The parties partially agree on how this section applied to Mr Larkin:

(a) The parties agree that subss (1) and (2) applied, because Mr Larkin was “entitled to receive” compensation under the 1982 Act. Because that compensation was in the form of attendant care, his entitlement was preserved until 30 June 1993. For reasons traversed below, this transitional provision has been saved in subsequent Acts and accordingly ACC has already compensated Mr Larkin for attendant care from his birth until 30 June 1993.

(b) Mr Larkin suggests, and ACC refutes, that subs (3) applied because although he was not “receiving compensation ... in respect of attendant care ... at a weekly rate of $350 or more immediately before the 1st day of July 1992”, as required, he was entitled to such compensation and would have received such compensation had his legal rights been fully understood by his family.

• [12] The remaining transitional provisions can be summarised briefly.
• [13] Section 149(1)–(2) was carried forward to the 2001 Act in two steps. First, s 439 of the 1998 Act preserved entitlements to receive compensation before 30 June 1993 and provided that any unpaid compensation continued to be payable by ACC. Second, s 376 of the 2001 Act continued the application of s 439.
• [14] Section 149(3) was carried forward in one step by s 374 of the 2001 Act:
  374. Compensation for pecuniary loss not related to earnings under 1972 and 1982 Acts: attendant care and household help

(1) This section applies if—

(a) a person was receiving compensation at a weekly rate of $350 or more immediately before 1 July 1992; and

(b) the compensation was paid under section 80 of the Accident Compensation Act 1982 or section 121 of the Accident Compensation Act 1972 and was for—

(i) attendant care, meaning personal care and mobility assistance necessary for the injured person; or

...

(c) the compensation was payable because of section 149(3) or (4) of the Accident Rehabilitation and Compensation Insurance Act 1992.

(2) The sections referred to in subsection (1)(b)—

(a) continue to apply to the person and to his or her entitlement to attendant care or household help; and

(b) can be used from time to time to reassess the person’s entitlement to attendant care or household help.

• [15] As can be seen, the language of s 374 largely reflects the language of s 149(3). The primary contention for Mr Larkin, resisted by ACC, is that he satisfies the requirements of both s 149(3) and s 374 and consequently is entitled to compensation for household care from 1 July 1993 to 1 April 2002, the only period for which he has now not been compensated by ACC.

Proceedings below

• [16] ACC’s position that it was not entitled to pay compensation for the 1993–2002 period was upheld by a reviewer and by Judge JH Walker on an appeal by Mr Larkin to the District Court.^[9] By consent, Judge Harrison then granted leave to appeal to the High Court on the following question of law:^[10]

Do sections 374 and 376 of the Accident Compensation Act 2001 confer any power on the respondent to compensate the applicant for constant personal attention/attendant care provided over the period 1 July 1993–31 March 2002?

• [17] In a judgment dated 26 November 2019, Clark J dismissed the appeal.^[11] She observed that the language of s 149(1) and (3) clearly distinguished between claimants who were simply entitled to receive compensation and those who were actually receiving it, and considered that Mr Larkin was effectively inviting her to read in a further subsection that was not there.^[12] Although it had been suggested that the lack of cover was the result of a legislative oversight, the Judge considered it was in reality the operation of a deliberate change in the accident compensation scheme in the 1990s.^[13] The Court was not entitled to depart from the clear statutory language of s 149(3) of the 1992 Act and Mr Larkin could not be compensated for the period in question.
• [18] Clark J also dismissed a subsequent application for leave to appeal to this Court.^[14] She rejected a submission made for Mr Larkin (and repeated in this Court) that the decisions of Taylor v Taite and Campbell v ACC conflicted with her conclusions.^[15] She also rejected the suggestion (also repeated in this Court) that the lack of transitional provisions that would cover Mr Larkin for the period in question was a legislative oversight,^[16] and ultimately concluded no question of law capable of bona fide and serious argument had arisen.

Submissions

• [19] For Mr Larkin, Mr Miller and Mr Lynskey sought leave to appeal on the same question of law that was before Clark J.^[17] At the outset, Mr Miller accepted that Mr Larkin does not come within the plain language of s 149(3), but contends that “he falls outside the class of persons contemplated by that provision, but within the ambit of an appellate court’s power to correct drafting omissions”. The essential argument for Mr Larkin was thus that in enacting the 1992 Act (and subsequently), the legislature overlooked those in the position of Mr Larkin who were vulnerable individuals with an entitlement of at least $350 per week and who, for whatever reason, did not make a claim to ACC for many years.
• [20] Mr Miller submitted that the proper interpretation of the provisions in question was now the subject of competing High Court authorities, and this Court should step in to determine the correct position. He understandably placed great weight upon the judgment of Chambers J in Taylor v Taite, a case to which ACC was not a party, but which determined how back-payments already made by ACC ought to be distributed among a family.^[18] Chambers J there applied a relatively generous interpretation of s 149(3):

[28] As at 1 July 1992, Jeremy [the man needing attendant care] was not in fact receiving compensation under s 80 ‘at a weekly rate of $350 or more’. But it is common ground that he should have been. The only reason he was not receiving compensation at a weekly rate of more than $350 was that ACC was at that time misapplying the law. Clearly, therefore, since Jeremy should have been receiving compensation at a weekly rate of $350 or more, he continued to be entitled to compensation under s 80 of the 1982 Act.

• [21] Mr Miller also relied upon a passage of this Court’s judgment in Campbell v ACC, a case which primarily concerned s 149(1)–(2) of the 1992 Act.^[19] Like Mr Larkin, the appellants in Campbell were injured while the 1982 Act was in force; unlike Mr Larkin, they applied for compensation in the mid-1990s, when the 1992 Act was in force. This Court accepted that under the 1992 Act and its numerous complicated amendments, the appellants were entitled to attendant care compensation through to 30 June 1993. It left open, however, whether the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation — Attendant Care) Regulations 1993 (the 1993 Regulations) could be interpreted to provide some degree of cover from the expiry of s 149(1)–(2) entitlements on 30 June 1993 to the date their claim was filed several years later.^[20] Mr Miller suggested this observation, which he conceded was obiter, opened the door to Mr Larkin relying upon the 1993 Regulations in this Court.
• [22] For ACC, Mr Rennie QC and Mr Curran relied primarily on the reasoning of Clark J in the High Court. Mr Rennie noted Mr Larkin conceded that a plain reading of the provisions left ACC with no power to compensate him. The suggestion that this was the result of a legislative oversight that ought to be remedied by this Court was, he submitted, unsustainable: in passing the 1992 Act, Parliament had made a clear policy decision not to carry over entitlements indefinitely except for those who were already in receipt of, and dependent upon, weekly payments of $350 or more. Further, the cases relied upon by Mr Miller did not disclose a seriously arguable question of law. The application should therefore be declined.

Analysis

• [23] The threshold for the grant of special leave was explained by this Court in Cullen v ACC:^[21]

[5] This Court has power to grant special leave to appeal under s 163(2) of the Act. The principles applicable to an application for leave under s 67 Judicature Act 1908 apply equally to an application under s 163 of the Act. The Court will exercise this power if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.

ACC suggested that applicants for special leave to this Court are also required to point to some further, extraordinary factor not properly taken into account by the High Court. However, we are satisfied that the test in Cullen already sets an appropriately high bar for leave and, being well‑established,^[22] need not be disturbed.

• [24] We accept that Mr Larkin has presented a question of law which involves a significant degree of private interest to him and, possibly, general public interest to other ACC claimants affected by these transitional provisions. However, for the reasons that follow, we are satisfied that the question is not capable of bona fide and serious argument, as the provisions cannot reasonably be construed in the manner that Mr Larkin desires. There is no ambiguity in the legislation and it is not the case that Parliament has simply mistakenly overlooked the need to enact savings or transitional provisions which the court will then infer from ordinary principles of interpretation.^[23]
• [25] First, as a matter of simple textual analysis, the difference between s 149(1) and (3) is clear. The first addresses those who are “receiving or entitled to receive” compensation, while the second only addresses those “receiving”. The apparent policy implication behind that distinction is that Parliament wished to grandfather in existing claimants, so as not to cause them severe hardship by removing payments they had become accustomed to, while applying a “sinking lid” so that future claimants were forced to transition to the 1992 Act. Such an approach does not imply any oversight on the part of the legislature.
• [26] Second, as Clark J observed,^[24] the suggested interpretation of s 149(3) would render 149(10) redundant.^[25] That subsection provided:

(10) For the purposes of subsections (3), (4), and (7) of this section, a person shall be deemed to be receiving compensation immediately before the 1st day of July 1992 if that person has an entitlement to do so by virtue of a decision on review or appeal given after that date, and the application for review was made before the 1st day of October 1992.

In fact, interpreting s 149(3) to benefit Mr Larkin would directly conflict with s 149(10) by effectively eliminating the deadline of 1 October 1992 for lodging applications for appeal or review. Claimants would be able to do so at any time afterwards, as Mr Larkin has done.

• [27] Third, we agree with Clark J that Campbell v ACC does not substantially assist Mr Larkin. As to the point concerning the 1993 Regulations, we read this Court’s judgment as suggesting, albeit very gently, that reg 3(1)(b) can be construed to capture individuals with an unexercised entitlement under s 149(2) of the 1992 Act. The effect of such an interpretation would be that individuals such as Ms Campbell could enjoy back-payment of attendant care pursuant to the 1993 Regulations from 1 July 1993 to whenever their claim was filed. Even if the 1993 Regulations can be read in such a way, however, that does not assist Mr Larkin because (unlike the claimants in Campbell) he did not apply to ACC when the regulations were in force, and he has not pointed to a statutory pathway which permits the payment of compensation. The transitional provisions applicable to s 149(1)–(2) do not assist as they are expressly time‑bound to entitlements arising on or before 30 June 1993.^[26] Mr Larkin is therefore again left with s 149(3), as its transitional provisions are not time‑bound in such a way. But the Court in Campbell v ACC specifically considered s 149(3) and observed that “the words ‘was receiving compensation’ suggest that the [subsection applies] only in relation to claimants who were actually receiving payments prior to 1 July 1992 at a weekly rate of $350 or more”.^[27] Mr Larkin is not such a person.
• [28] Fourth, we are not persuaded that there is a controversy in the High Court authorities that ought to be resolved by this Court. We see Taylor v Taite as something of a special case arising from the fact that Mr Moncur (the injured man) was underpaid only because of a legal misapprehension by ACC. Chambers J’s approach simply recognised the fact that it would be wrong to disadvantage Mr Moncur by preserving the interpretation that had been incorrectly applied by ACC.
• [29] We therefore conclude that this application does not raise a question of law capable of bona fide and serious argument.

Result

• [30] The application for leave to appeal is declined.
• [31] There is no order as to costs.

Solicitors:
John Miller Law, Wellington for Applicant
Russell McVeagh, Wellington for Respondent

---

^[1] Larkin v Accident Compensation Corp [2011] NZACC 60.

^[2] After ACC sought to reduce Mr Larkin’s hours of attendant care, he again brought a successful appeal to the District Court confirming his entitlement to 24-hour care: Larkin v Accident Compensation Corp [2014] NZACC 311.

^[3] Then called the Injury Prevention, Rehabilitation, and Compensation Act 2001.

^[4] Hoare v Accident Compensation Corp [2018] NZACC 177 [District Court decision]; and Larkin v Accident Compensation Corp [2019] NZHC 3085 [High Court decision].

^[5] Leave to appeal was declined by the High Court: Larkin v Accident Compensation Corp [2020] NZHC 1234 [High Court leave application].

^[6] Accident Compensation Act 2001, s 360.

^[7] Rangiwhetu v Accident Compensation Corp HC Wellington CIV-2006-485-1402, 19 April 2007 at [66]–[67].

^[8] Subsections (2) and (3)–(10) were inserted subsequently by s 2 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No 2) 1992 and s 46 of the Accident Rehabilitation Insurance Amendment Act (No 2) 1993, respectively.

^[9] District Court decision, above n 4.

^[10] Hoare v Accident Compensation Corp [2019] NZACC 12 at [5].

^[11] High Court decision, above n 4.

^[12] At [29]–[30].

^[13] At [36]–[37].

^[14] High Court leave application, above n 5.

^[15] At [13]–[21], referring to Taylor v Taite HC Rotorua M13/00, 23 May 2002; and Campbell v Accident Compensation Corp CA138/03, 29 March 2004.

^[16] At [22]–[25].

^[17] See above at [16].

^[18] Taylor v Taite, above n 15. Compare New Zealand Guardian Trust Co Ltd v Pora [2006] NZHC 1326; [2007] NZAR 1 (HC) at [35].

^[19] Campbell v Accident Compensation Corp CA138/03, 29 March 2004.

^[20] At [34]–[35] and [44(5)].

^[21] Cullen v Accident Compensation Corp [2014] NZCA 94 (footnotes omitted).

^[22] For recent applications, see for example Gaskin v Accident Compensation Corp [2020] NZCA 147 at [7]; and Matthew v Accident Compensation Corp [2020] NZCA 449 at [29].

^[23] See generally Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 634–638.

^[24] High Court decision, above n 4, at [32(c)].

^[25] Section 149(10) has been re-enacted as s 374(5) of the 2001 Act.

^[26] Section 439 of the 1998 Act, brought forward by s 376 of the 2001 Act: see above at [13].

^[27] Campbell v Accident Compensation Corp, above n 21, at [43].