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Accident Compensation Cases

Bosman v Accident Compensation Corporation (ACAA, 01/04/11)

Judgment Text

P J Cartwright Judge
Having previously unsuccessfully sought to obtain Attendant Care Compensation under s 80(3) of the 1982 Act, all of the way through to the Court of Appeal [2007] NZCA 482, the appellant now seeks to revisit that issue, seeking the same compensation, pursuant to the same sections of the same Acts. 
Underlying that, the appellant contends that because he might (and the evidence is no higher than that) have received some gratuitous assistance from others after the date of the accident and before repeal of the 1982 Act, he is entitled by s 149 of the 1992 Act to receive grandparented 1982 Act compensation. 
The Issue 
This issue previously addressed was the interpretation of s 149(1) of the 1992 Act, and whether a person who was a hospital inpatient as at 1 July 1992 was nonetheless “entitled to receive” attendant care compensation under the 1982 Act as at that date. That was answered by the Courts up to and including the Court of Appeal in the negative; the appellant's compensation was provided in terms of the 1992 Act and regulations. 
The appellant now seeks to again say that his compensation should be provided pursuant to the 1982 Act and transitional provisions of the 1992 Act based on substantially the same evidence as was previously available. 
The appellant was involved in a motor vehicle accident on 10 May 1992 (some six weeks before the repeal of the 1992 Act). 
The appellant was then in a coma for some several weeks. 
A claim for ACC cover was made on the appellant's behalf, and was accepted during June 1992. 
The appellant was a hospital in-patient from the date of accident, down to his discharge from hospital on 10 July 1992. 
With effect from the close of 30 June 1992, the 1982 Act was repealed. 
While in hospital, all of the appellant's care needs were met through the public hospital system, including costs met by ACC in respect of that care. 
From discharge, personal care compensation was provided to the appellant under the 1992 Act and regulations. 
Payments were made at varying levels, the maxima provided by the relevant regulations. Various reviewable decisions were issued in respect of that compensation. 
In September 1994 (on the suggestion of the case manager) the appellant sought coverage under the ARCI Complex Personal Injury (interim) Regulations 1994 (“CPI Regulations”). Coverage under the CPI Regulations was later accepted. Down to December 2000, no relevant review application was filed as to the quantum of any compensation payable, or the legislative basis for any of those payments. 
On 21 November 2000 ACC issued a decision as to the appellant's care entitlements. The appellant (by counsel) sought a review of that decision. In a decision dated 16 March 2001, the reviewer adopted the appellant's contention that the CPI Regulations (rather than the 1982 Act Compensation Provisions) applied to the appellant's attendant care needs. In the course of that review the appellant also conceded non-application of the 1982 Act provisions (at least after 30 June 1993). 
In December 2000 counsel for the appellant sought advice from ACC whether backdated compensation would be provided under the 1982 Act (as opposed to the 1992 and 1998 Acts) from the date of discharge from hospital down to October 2000. 
In the intervening period, the appellant had become covered by the CPI Regulations. Based on changing circumstances over time, from October 2000 ACC had accepted that the appellant required direct and indirect cares totalling 24 hours per day. 
Previous Litigation on this Issue 
On 5 January 2004 ACC issued a reviewable decision providing for back payments of in excess of $375,000 Attendant Care Compensation (under the 1992 and 1998 Act) for the period 10 July 1992 down to 1 October 2000. A review was lodged in respect of the quantum of that amount. 
The appellant contended that the quantum of ACC's 5 January 2004 decision would differ if the appellant's claim was considered under the repealed 1982 Act, as opposed to those Acts in force and applying after the repeal. 
The Reviewer concluded that the occasion for the exercise of ACC's discretion under s 80(3) of the 1982 Act did not arise until the appellant's discharge from hospital, and by that time the 1982 Act had been repealed. Accordingly the Reviewer distinguished the Decision of the Court of Appeal in Campbell and Handley v ACC unreported CA138/03, and determined that the appellant was not “entitled to receive [that] compensation immediately before the 1st day of July 1992” (as required by s 149(1) of the 1992 Act). 
The decision was upheld by the District Court, High Court and Court of Appeal, finally on 2 November 2007. 
Reconsideration Request 
On 8 December 2007, and notwithstanding the Court of Appeal's decision, Mr Miller wrote to ACC asking that it reconsider application of s 149 of the 1992 Act to Mr Bosman. Letters from Mr Bosman's family were attached. 
ACC considered the material provided, and by decision dated 8 February 2008 recorded that the information provided still did not establish any entitlement in terms of s 149 of the 1992 Act. A review was lodged by Mr Miller on 13 February 2008. 
The Reviewer (Ms V Thomson) dismissed the application for review by decision dated 18 September 2008. No evidence was given at review. 
At this point the Authority considers it appropriate for him to endorse, in its entirety, the decision of the Reviewer. The analysis of the Reviewer's decision, her report and recommendation pursuant to s 102(9)(b) of the Accident Compensation Act 1982, is contained in pages 8-11 of her determination. The explanation for her determination is given in closely reasoned but in non-extravagant language. Careful attention was paid by the Reviewer to the evidence of Mr Bosman's daughters and former wife. Most significant was the Reviewer's assertion that “ … There is simply no suggestion that there was any expectation of payment for the assistance provided … ”. Despite later evidence which sought to soften any misimpression as to payment for assistance provided, no currency of any such misimpression was ever gained. 
Mr Miller filed this appeal on 26 September 2008. The matter has not been actively prosecuted since. 
Matter Now Before the Authority 
The Authority now has brief affidavits from the appellant's former wife (Ms Salanki) and son in law (Mr Love) substantially repeating the content of letters provided previously. In her affidavit of 13 May 2010 Ms Salanki explained she continued to look after Mr Bosman after he was discharged from hospital. Ms Salanki moved into his house so she could look after him at all times and Ms Salanki added: “I was able to live on my savings for four months, and then I applied for the Sickness Benefit”. If Ms Salanki had not done this for Mr Bosman, she said ACC would have had to pay someone to do it for him. 
In his affidavit of 16 May 2010 Mr Love added: “Bill could not keep his automotive garage business after his accident so I wound it up for him. The business had been going for about 25 years so there was a lot of gear. I arranged for it to be sold, which took some months. I also sought legal advice about the lease for the garage.” 
In his synopsis of submissions for the appellant, Mr Miller submitted: 
“The appellant's argument is that as a 1982 Act claimant, he comes under the transitional sections of the 1992 Act. 
In particular s 149 allows his entitlement to be calculated under the 1982 Act rather than the less generous provisions in the 1992 Act and Regulations. ”
The argument for the appellant is contained in paragraphs 28 and 29 of the Court of Appeal's decision in Bosman v ACC [2007] NZCA 482Has Litigation History which is not known to be negative[Blue]  set out in the review decision. 
The appellant says that he comes under s 149(1) as he was entitled to receive compensation under s 80 for the assistance others provided for him. 
Details of the assistance others gave him while he was in hospital were presented at the Review. 
Further material has been supplied and the affidavits filed in the Court. 
It was Mr Miller's concluding submission that the material is sufficient for ACC to be directed to reconsider his entitlement as a transitioned 1982 Act claimant. 
The Authority has the extremely skeletal October 2010 submissions of Mr Miller contending “that the material is sufficient for ACC to reconsider his entitlement as a transitioned 1982 Act claimant”
The fact of the matter is that ACC had reconsidered the material and the decision was that the appellant did not, on the evidence, satisfy s 149 of the 1992 Act, primarily because he had not satisfied s 80 of the 1982 Act while that was in force. 
In the absence of precise detailed argument from the appellant, the Authority is obliged to conclude that the Reviewer correctly decided all relevant matters. 
Upheld in its entirety is respondent Counsel's submission that the Reviewer correctly decided and determined all matters argued in this appeal. 
Accordingly the appeal is dismissed. 

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