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Accident Compensation Cases

Wratt v Accident Compensation Corporation (DC, 22/09/04)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
The Issue 
[1]
Is the Corporation's decision of 28 August 2003 declining the Appellant's request for assistance in the purchase of a motor vehicle, correct? 
Narrative of Fact 
[2]
The Appellant suffered a back injury on 28 March 1989 and was subsequently granted cover by the Corporation. On 10 September 1990, the Appellant applied for a “ … car grant (suspended loan) … ” in order to regain independent mobility. The Corporation obtained a report from Kevin Leary (occupational therapist) dated 5 November 1990, which concluded that the Appellant required a fully automatic vehicle with supportive adjustable seating, and that power steering would be a desirable feature. 
[3]
On 21 November 1990, the Corporation approved a contribution of $3,500 towards the purchase of a vehicle suitable for the Appellant's needs. 
[4]
At some time in 1990, the Appellant purchased a Mitsubishi Eterna and used this vehicle until 2000, when it was replaced with a Hyundai Steller. Both vehicles were suitable for the Appellant's needs. 
[5]
On 21 June 2002, the Appellant applied for further “car grant assistance” on the grounds that his current vehicle was “ … no longer suitable … ” and “ … the rear suspension needs major overhaul … ”
[6]
The Corporation obtained a Transport for Independence Assessment report from Vera de Graauw (for Kevin O'Leary) dated 14 August 2002. The report concluded that “ … Michael is able to physically drive his existing car in a safe normal manner despite the existing disability … ”
[7]
On 21 August 2002, the Corporation declined the Appellant's request for assistance, noting that the “ … current vehicle … appears to require maintenance only. Unfortunately the maintenance of a private vehicle is the responsibility of the owner not the Corporation … ”
[8]
On 18 July 2003, the Appellant again referred to the Corporation for a “Transport of Independence” assessment. A Transport for Assessment Report dated 14 August 2003 was completed for the Corporation by Lynne Cheshire (for Kevin O'Leary). The report concluded the Appellant no longer had a vehicle because he was unable to “ … afford the continuous repairs, nor the replacement cost of an automatic vehicle which would suit his needs and be reliable … ”
[9]
On 28 August 2003, the Corporation declined the Appellant's request, noting that “ … as you previously owned a suitable vehicle which you have disposed of and you do not require specialised modifications or features in any vehicle you are not entitled to receive this assistance. As the owner of a vehicle it is expected that you would have had to eventually replace the vehicle and that this would have occurred regardless of the accident … ”
[10]
On 5 May 2004, Lynne Cheshire provided a supplementary report to the Appellant. Among other things, the report noted that many of the special features sought by the Appellant are “ … found in many modern cars … ”and that “ … Careful vehicle selection eliminates the need for modifications.” 
[11]
In a review decision, the Corporation's decision was upheld, on the ground that as standard vehicles are available that meet the Appellant's particular requirements, the cost, and therefore the need, did not arise from the effects of the personal injury. 
Legislation and Legal Principles 
[12]
Under the Injury Prevention Rehabilitation and Compensation Act 2001, it is necessary to have particular regard to the provisions of ss 78, 81 and 84. 
[13]
In Schedule 1, Clause 21 is relevant. It provides: 
“21
Transport for independence: matters to which Corporation must have regard 
In deciding whether to provide or contribute to the cost of transport for independence, the Corporation must have regard to — 
any rehabilitation outcome that would be achieved by providing it; and 
the cost, and the relevant benefit, to the claimant of the transport for independence service for which the claimant has lodged a claim; and 
the difficulties faced by the claimant in doing the following in relation to the transport used by the claimant before his or her personal injury, without the transport for independence service for which he or she has lodged a claim: 
driving or operating the vehicle: 
gaining access to the vehicle: 
enjoying freedom and safety of movement in the vehicle: 
travelling as a passenger in the vehicle: 
transporting any essential mobility equipment in the vehicle; and 
the need for the claimant to own or have access to a vehicle, having regard to the times at which and the frequency with which the claimant is likely to need that form of transport; and 
alternative means of transport available to the claimant; and 
the effect that modifications, or purchase, of a vehicle will have on the likelihood of the claimant obtaining and retaining employment; and 
the existing vehicle or vehicles owned or used by the claimant; and 
whether and when the limitations caused by the claimant's personal injury are expected to improve; and 
any plans and quotes an appropriately qualified person provides for proposed modifications to, or for the purchase of, a vehicle. 
The Corporation may require the claimant to satisfy the Corporation of the matters set out in subclause (3) or subclause (4) before the Corporation approves the modification or purchase for which the claimant has lodged a claim. 
The Corporation may require the claimant to satisfy the Corporation that a vehicle will be modified in such a way that it — 
will be able to be issued with a warrant of fitness; and 
will — 
comply with regulations made under the Transport (Vehicle Standards) Regulations 1990; or 
comply with any alternative standards prescribed under regulation 6 of those regulations; or 
be issued with an exemption under those regulations. 
If a claimant wishes to drive a modified or newly purchased vehicle, the Corporation may require the claimant to satisfy the Corporation that he or she is likely to be able to drive the vehicle safely, and be legally permitted to drive it. ”
[14]
Clause 22 defines the rights and responsibilities: 
“Transport for independence: rights and responsibilities 
(1)
The Corporation is not liable to purchase, or contribute to the purchase of, a motor vehicle if the claimant, or a person proposing to transport the claimant,— 
(a)
owns or part owns or has the use of a vehicle that may be modified in order to assist in restoring the claimant's independence; or 
(b)
disposed of a vehicle, after the claimant's personal injury, that may have been able to be modified in order to assist in restoring the claimant's independence. 
(2)
The Corporation is— 
(a)
not liable— 
(i)
to ensure that the claimant pays any person that sells the vehicle or undertakes the modifications; or 
(ii)
to pay that person directly, if the claimant does not pay: 
(b)
not liable for the cost of maintenance or repair of any vehicle or modification to a vehicle, or for registration, licensing fees, insurance, or other running costs: 
(c)
not liable for the cost of removing any vehicle modifications no longer required or for restoring any vehicle to its former state: 
(d)
not liable for any loss of resale value resulting from modifications to any vehicle: 
(e)
not liable to contribute to the cost of replacing a vehicle for whose purchase or modification the Corporation has already contributed, unless the replacement is necessary for the claimant to maintain independence: 
(f)
not liable to contribute to a replacement under paragraph (e) if the claimant's need for a replacement vehicle arises because the claimant— 
(i)
has not maintained or insured the existing vehicle; or 
(ii)
has, without a reasonable excuse, disposed of the existing vehicle. 
(3)
In determining the amount to be paid in respect of a vehicle, the Corporation may take into account the value of any other motor vehicle owned by the claimant, if the claimant previously used the vehicle on a regular basis. 
(4)
The Corporation must— 
(a)
make payments for the purchase of, or modification to, a vehicle to the claimant, unless the claimant requests otherwise; and 
(b)
make the payment by way of an outright grant. 
(5)
The Corporation is not entitled to recover any payment made to the claimant if— 
(a)
the claimant no longer requires the vehicle modifications; or 
(b)
the vehicle is disposed of or destroyed. ”
[15]
A primary objective of the legislation is rehabilitation, which is aimed to help a person to lead as normal a life as possible, having regard to the consequences of the person's personal injury. This is entrenched both in the statutory definition and Clauses 21 and 22 of Schedule 1. The heart of this appeal is the question of the circumstances in which the Corporation is required to consider providing assistance in respect of transport for independence. Section 79 of the Injury Prevention, Rehabilitation, and Compensation Act 2001, has its emphasis on “restoring” a claimant's independence to the maximum extent practicable: that is, the purpose is to supply something that is necessary to provide independence that could not normally be obtained. 
[16]
In s 81, of particular note are subsections 4(c)(i) and (iv), which require that the Corporation must be satisfied that the “key aspect” of the social rehabilitation is: 
“(i)
is required as a direct consequence of the personal injury for which the claimant has covev …  
(iv)
is of a type normally provided by a rehabilitation provider. ”
[17]
Clauses 21 and 22 of the First Schedule make it clear that what the Corporation must consider is providing enhanced transport assistance, or, as it is usually put, “a modified vehicle” or a vehicle that has a particular configuration that meets the claimant's particular needs arising from his personal injury. 
[18]
Clause 20(1) provides the criteria that are to be taken into account in reassessing that need and they include: 
The rehabilitation outcome that could be achieved. 
The cost, and the relevant benefit to the claimant. 
The difficulties faced by the claimant. 
The existing vehicles or vehicles used or owned by the claimant. 
[19]
Specifically dealing with the issues of the transport independence, clause 50(1) requires a balancing of the rehabilitation outcome and the cost and the relevant benefit to the appellant of the independence service for which the insured has lodged a claim. Pursuant to Clause 22, the respondent is not liable to contribute to the cost of replacing a vehicle for whose purchase or modification the insurer has already contributed, unless the replacement is necessary for the insured to maintain independence in daily living. Further the respondent is not responsible for the cost of maintenance or repair of the vehicle, or other running costs. 
The Submissions of the Respondent 
[20]
The evidence is that the claimant in this case does not need a modified vehicle; a standard vehicle is perfectly adequate — see pages 7 and 8 of the Occupational Therapist's report of 14 August 2003, and her further report of 4 May 2003, para 6. 
[21]
In the latter, she states: 
“Mr Wratt requires a car with good adjustable seating and has a good height for access and egress, with automatic transmission and power steering. These features are found in many modern cars. Careful vehicle selection eliminates the need for modifications. ”
[22]
Against that background, one can then consider each of the criteria set out in clause 21(1). Those factors are: 
[a]
Any rehabilitation outcome that would be achieved — the Applicant had a vehicle prior to his injury, and needs one after it; the vehicle does not need to be modified, and so this is not a “rehabilitation” need. 
[b]
Costs and benefits to the claimant of the transport for independence service for which he has lodged a claim — an alternative option exists: the Appellant has access to another vehicle, as per his statutory declaration of 20 May 2004; and see the Reviewer's notes of evidence, p.15. 
[c]
Difficulties faced by the claimant in various respects. This requires a consideration of the various factors identified in sub clause (c), on the basis of having a modified vehicle and not having a modified vehicle. The short point is a modified vehicle is not required to meet these particular criteria; there can be no “difficulties” to assess. 
[d]
The need for the claimant to own or to have access to a vehicle having regard to the times at which and the frequency at which the claimant is likely to need that form of transport — essentially, it appears from pages 3 and 4 of the OT report, that the transport needs are for general household tasks, medical appointments, and social and recreational activities. 
[e]
The effect that modifications for purchase of a vehicle will have on the likelihood of obtaining and retaining employment — the Appellant is not in employment, and there is no evidence that this is a relevant factor. 
[f]
The existing vehicle/vehicles owned by the claimant — according to the statutory declaration, the Appellant has a Ford Telstar. 
[g]
Whether or when the limitations caused by the personal injury are expected to improve — there is no evidence of imminent improvement. 
[h]
Any plans and quotes from an appropriate qualified person for proposed modifications — not relevant. 
[23]
It is clear from the OT report that the Corporation obtained information on all these factors, weighed them up, and made a decision. 
[24]
The nub of the decision was that there was no longer a need for a specifically modified vehicle, and it is submitted that is within the range of conclusions the Corporation was entitled to reach in exercising its discretion. 
The Submissions of the Appellant 
[25]
The appellant submits that the failure of his previous vehicles was because of wear and tear, and not merely maintenance. The submission is that the appellant needs a modified vehicle with power steering and automatic gears as necessary to maintain his independence. The present gear box is a manual The appellant submits that his injury has got worse and the occupational therapist reports demonstrate his needs for a replacement vehicle. The appellant submits that the reason for his turnover in vehicles was because they were dilapidated. 
[26]
The appellant relies upon the principles contained in the cases of Wilde [1995] NZAR 145, Naish (234/2003), McGinty (210/002) and Buis (222/03). 
Decision 
[27]
I find that the appellant has not proved on a balance of probabilities that a need for a replacement vehicle is necessary for him to maintain his independence. Again, it cannot be said that the type of vehicle that he requires is of a type normally provided by a rehabilitation provider. There is nothing unique in the type of vehicle that the appellant desires that is out of the ordinary for an average car buyer. 
[28]
However, there is nothing before me that shows that the respondent has not exercised its discretion properly by balancing the competing needs of the appellant against the cost to produce the relevant benefit. At the end of the day the appellant purchased a Ford Telstar, because his daughter was 15 years and wanted to get her licence. This car has a 5 speed manual system of gears, which the appellant drives when he needs to, and which will become his daughter's once she has her driver's licence (see page 15 of transcript). 
[29]
In respect to the cases cited by the appellant, I observe that they were all cases dependent upon their specific factual backgrounds. The discretion in those cases was ultimately exercised by the appellate court examining the content of the primary decisions and deciding that the appeals would be allowed because the balancing exercise required on the specific facts of those cases came down in favour of the appellant. 
[30]
I see nothing in the facts of this case that would lead me to find that the balance of the various factors came down in favour of the appellant. For the reasons that I have given I dismiss the appeal. There will be no order as to costs. 

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