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Accident Compensation Cases

Knighton v Accident Compensation Corporation (DC, 07/03/05)

Judgment Text

DECISION OF JUDGE P F BARBER 
Judge P F Barber
The Issue 
[1]
This is an appeal against a Review decision upholding the respondent's 24 December 2002 decision (as adjusted on 3 January 2003) determining child care and home help entitlements for the appellant. 
[2]
From the point of view of the respondent, a particular issue is whether the appellant can demonstrate that the respondent's exercise of its discretion was wrongful. 
[3]
The appellant sees the issue as the extent to which other household family members, or other family members, are reasonably expected to do domestic activities for a claimant after their personal injury. The appellant and her parents seek compensation for the care they were forced to provide to the appellant. This caused substantial disruption to the lives of her parents, loss of income, as well as their financial cost in employing extra carers. I note that at least one other family member (a sister of the appellant) gave the appellant considerable assistance. 
Background 
[4]
On 27 January 2000 the appellant sustained a personal injury by accident when she fell against a seat in a bus. She was three months pregnant at the time and sustained an injury to the cartilaginous joint at the front of her pelvis which caused ongoing pain in her groin and hip regions and restricted her mobility and ability to lift anything heavier than 4 kgs. Pain medication and sedation were required for her to sleep at night. 
[5]
For various good reasons, a claim for cover was first made on 19 November 2001 but not accepted until April 2002. The appellant was pregnant with her second child in November 2001, and the respondent seems to have considered that pregnancy is the usual cause of her condition. The point of her application was for home help and child care to assist with her then 1 ¼ year old child. Although her claim had not yet been accepted, on 20 December 2001 the respondent agreed to provide her with 25.75 hours per week child care and 4.25 hours per week home help as an interim measure. She gave birth to her second child on 2 January 2002. 
[6]
In February 2002 the appellant's injury caused needs were assessed and 45 hours per week of child care were assessed and recommended. In that month she sustained a further fall and was hospitalised at the time of that assessment. 
[7]
In March 2002 the appellant and her husband separated. At that time she was on medication to help her sleep through her pain and she states that he was unable to provide 24 hour care for her children. It seems that the respondent felt other non-injury related health issues existed. 
[8]
For the sake of caring for her two very young children, the appellant felt forced to move into her parents' home in about April 2002; but at some later stage (about December 2002) she seemed to reoccupy her home with her parents until they left in mid July 2003. The appellant and her parents have expressed strong views about the appellant's condition, abilities, and rehabilitation at material times but those views have not been shared by the health professionals treating the appellant. I take all that into account. 
[9]
On 18 April 2002 the appellant's claim was accepted following a second report dated 8 April 2002 from Mr Cleary, an orthopaedic surgeon, that her then condition was caused by her fall in the bus. 
[10]
In a letter to the respondent of 9 May 2002 the appellant recorded, inter alia, that although both her parents work nights and weekends, as well as during the day, totalling between 50 and 70 hours each per week on average, they were spending all their spare time looking after the appellant and her children, and the appellant's mother had needed to turn away work at her job. She referred to her parents rising at 4.30 am to pick up her baby so the appellant could feed him and then the parents would put him back in his cot. 
[11]
On 30 May 2002 the parents met with an officer of the respondent and advised they could no longer provide “123 hours” of home-support per week as they said they were then doing for the appellant and her children, and that the appellant's injuries meant that she required 24 hour care per day. Her parents felt that the pressure of their looking after the appellant and her children was impacting on their own jobs, study and leisure time, and their separate need to care for their disabled son. That day, the respondent increased the hours of home-support to 60 per week and to rise to 24 hour care when the parents went away on holiday between 5 and 15 July 2002. 
[12]
The respondent emphasised that it had been assessing the appellant's entitlements in accordance with medical and other expert opinion it received and in terms of the Act. The respondent had engaged further assessors to revisit some issues; but there was a strained relationship between the respondent and the appellant (and her parents). 
[13]
By letter of 1 November 2002, the respondent advised the appellant that it was reducing the home-support hours to 56 hours per week for three weeks and would then review the situation with a view to a further reduction. 
[14]
On 4 November 2002 the appellant wrote to the respondent seeking 24 hour care per day seven days a week. 
[15]
On 8 November 2002 the appellant's parents wrote to the respondent notifying it of their decision to cease providing their daughter with “round-the-clock” support. 
[16]
Still further assessments were undertaken for the respondent. These led to the respondent issuing its said 24 December 2002 decision maintaining the then status quo of 56 hours per week combined child care and limited home help until 1 January 2003, an increase to 70 hours per week from 2 January 2003 until hospitalisation of the appellant for some surgery (for a fusion of the pubic symphysis) and, thereafter, 11.5 hours per day pending reassessment. Also, the respondent agreed to provide some hours of oversight supervision. 
[17]
The appellant took issue with that decision which led to correspondence between the parties. In a 3 January 2003 letter the 24 December 2002 decision was clarified, or varied, to approve an additional “floating” 10 hours per week from 2 January 2003 (i.e. a potential 80 hours per week total) for four weeks. This was “on-call” and needed to be approved first with reasons given each time. 
[18]
The respondent obtained further assessments of the appellant's situation in January 2003. 
[19]
On 18 March 2003 the respondent confirmed 24 hour child care from 11 to 29 March 2003 following surgery which had taken place on 11 March 2003. 
[20]
Communications between the parties seemed to continue quite intensely and there seemed to be constant ongoing assessments of the appellant's health. On 14 April 2003, hours were cut back to 84 per week. They were further reduced to 78 hours per week from 1 May 2003. 
[21]
On 31 January 2003 the appellant had sought a review of the 24 December 2002 decision, and that was heard in the usual way, but her application was dismissed in a Reviewer's decision of 18 June 2003. 
[22]
Inter alia, on about 26 June 2003 the parents advised the respondent that they were going to move out of the appellant's house because they were unable to cope with the assistance the appellant needed in terms of their own commitments. They moved out on 11 July 2003. 
[23]
On 30 July 2003 the appellant had further surgery to her pubic symphysis and she remained on 24 hour care until 5 January 2004. This then began reducing in line with her increasing strength and ability to manage without medication and steadied up at 10 hours per week by about September 2004. I understand that the appellant is now, virtually, fully recovered. 
The Legislation 
[24]
Clause 15 of Schedule 1, Part 1, to the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”) sets out the circumstances where the respondent Corporation will provide or contribute to the cost of child care: 
“15 Child care 
(1)
In deciding whether to provide or contribute to the cost of child care, the Corporation must have regard to— 
(a)
any rehabilitation outcome that would be achieved by providing it; and 
(b)
the number of the claimant's children and their need for child care; and 
(c)
the extent to which child care was provided by other household family members before the claimant's personal injury; and 
(d)
the extent to which other household family members or other family members might reasonably be expected to provide child care services after the claimant's personal injury; and 
(e)
the need to avoid substantial disruption to the employment or other activities of the household family members. 
(2)
The Corporation is not liable to provide child care under this clause if it provides child care for the child under clause 76. 
(3)
The Corporation is not liable to provide child care for a child to the extent that the child is being provided with attendant care, education support, or training for independence. 
(4)
The Corporation is not liable to pay for child care to the extent that child care continues to be provided after a claimant's personal injury by a person— 
(a)
who lives in the claimant's home or lived in the claimant's home immediately before the claimant suffered his or her personal injury; and 
(b)
who provided child care before the claimant suffered his or her personal injury. ”
[25]
Clause 17 of Schedule 1 of the 2001 Act sets out the matters to which ACC must have regard when deciding to provide or contribute to the cost of home help. 
“17 Home help 
(1)
In deciding whether to provide or contribute to the cost of home help, the Corporation must have regard to— 
(a)
any rehabilitation outcome that would be achieved by providing it; and 
(b)
the extent to which a claimant undertook domestic activities before the claimant's personal injury and the extent to which he or she is able to undertake domestic activities after his or her injury; and 
(c)
the number of household family members and their need for home help; and 
(d)
the extent to which domestic activities were done by other household family members before the claimant's personal injury; and 
(e)
The extent to which other household family members or other family members might reasonably be expected to do domestic activities for themselves and for the claimant after the claimant's personal injury; and 
(f)
the need to avoid substantial disruption to the employment or other activities of the household family members; and 
(g)
the impact of the claimant's personal injury on the contribution of other family members to domestic activities. 
(2)
The Corporation is not liable to pay for home help to the extent that home help continues to be provided after a claimant's personal injury by a person— 
(a)
who lives in the claimant's home or lived in the claimant's home immediately before the claimant suffered his or her personal injury, and 
(b)
who provided home help before the claimant suffered his or her personal injury. ”
Reasons for Decision 
[26]
Essentially, it is submitted for the appellant that the respondent failed to properly exercise its discretion under Clause 15 of Schedule 1 of the 2001 Act in relation to the provision of child care and Clause 17 of that Schedule in relation to home help. The focus seemed to be over the period December 2002 to 31 July 2003. 
[27]
I received detailed written and oral submissions from each counsel and I set out the following as a fairly small, but helpful, portion of the submissions for the appellant, namely: 
“3.17
In the present case, Ms Knighton's home help and child care needs in relation to the nature and extent of her personal injury were consistently identified by ACC at approximately 56 to 60 hours per week, rising to 70 hours in preparation for her impending operation. 
3.18
However, this level of care was not based on the actual injury requirements, but on the fact that Ms Knighton's parents were around to provide unpaid care. This is illustrated by the fact that when the parents were away on holiday from 5 to 15 July 2002 the level of care was increased to 24 hour coverage (see decision letter 30 May 2002). 
3.19
This was because the nature and extent of Ms Knighton's injury meant that 24-hour care was required for safety reasons. As noted in the 20 February 2003 assessment by Ms de Montalk, Registered Nurse and former Home Help/Personal Care Co-ordinator for Capital Coast Health, Ms Knighton took medication/sedation at night which meant she was often unable to be roused when her children required assistance. This was also noted in various assessments conducted by ACC. 
3.20
Although granted in the past, the extra coverage was not approved when the parents went away on holiday in February 2003 and business in July 2003. This appears to be because ACC considered Ms Knighton was not taking as strong night medication as before. Ms Knighton was forced to employ a private carer at her own expense at night (6pm to 8am) to ensure the safety of the children. ”
[28]
I agree with Mr McBride that the only assessor/assessment recognised under the Act is that of a person appointed by the respondent. I agree with him that, particularly, in a case such as the present where there are numerous factors and family dynamics in play, the respondent's duty is to exercise its discretion in providing for the appellant's needs arising from the injury. It is not liable to meet any needs arising by reason of the appellant's marriage break-up, her non-covered health conditions, or her domestic circumstances in general. 
[29]
Mr McBride notes the pivotal stance of the appellant that the respondent has not funded all cares to which the appellant was entitled at material times, and submits that it was not required to fund all cares required by the appellant by reason of her accident let alone all cares she actually required. Mr McBride emphasised that the said Clauses 15 and 17 (and their predecessors in the 1998 Act) represent an explicit statutory departure from the previous law in emphasising the cushioning role played by the respondent and the societal expectations that family members would contribute towards the care of injured members of the household. He accepted that the issue in the present case is: what should have been the extent of the respondent's contribution? He submitted that the starting point is the view of the assessors retained by the respondent. I agree. 
[30]
Mr Miller had submitted (inter alia) that the Act envisages a basic two step process in evaluating a claimant's home help and child care needs: i.e.- (a) assess the claimant's home help and child care needs in relation to the nature and extent of the claimant's personal injury; and (b) assess the extent to which household family members or other family members might reasonably be expected to provide home help and child care for the claimant. I agree. He accepted that Clauses 15 and 17 of Schedule 1 of the 2001 Act provide a statutory expectation that family members, without financial assistance, will provide at least some of the home help and/or child care required, except where that will be unreasonable. I also agree with that. 
[31]
Mr McBride noted that s 81 of the 2001 Act (dealing with the respondent's liability to provide key aspects of social rehabilitation) emphasises the respondent's discretion. I agree with him that, presumably, this is because the Legislature recognised that there can never be any absolute certainty of entitlement and each case will depend on its own facts. 
[32]
I am very conscious that in the present case, at material times, the appellant's husband had left the matrimonial home and there were understandable reasons why he could not be expected to contribute to her care or to child care at the home. Also, this could have affected the appellant's entitlement to the DPB benefit. 
[33]
In this case, enormous strain was placed on the appellant's parents through the necessity, by default, that they provide the cares in issue as best they could. 
[34]
I do not think it is appropriate for the respondent to take undue account of the availability of family assistance. However, I agree with Mr McBride that as is noted in s 81(4)(b), the hallmark is “the Corporation's assessment of it [social rehabilitation] under whichever of Clauses 13 to 22 of Schedule 1 are relevant”; so that it is the respondent's exercise of discretion which falls to be considered in this case. “Social rehabilitation” in s 81 means (inter alia) child care and home help. 
[35]
Section 84 of the 2001 Act deals with assessment and reassessment of need for social rehabilitation. I agree with Mr McBride that the views regarding this case of Ms de Montalk (whom he described as a family member of counsel for the appellant and a person not so much as recognised by the Act in terms of s 84) cannot supplant the decision of the statutory decision-maker; although the assessments of those who were appointed under s 84 and, similarly, the views of the appellant and her parents, are not determinative. Mr McBride also put it that the latter's views may not even be relevant, but I could not accept that. The ultimate decision must be that of the respondent (through appropriate staff), but one would expect the respondent to mainly and generally rely on its assessors as contemplated in s 84 of the 2001 Act. 
[36]
As Mr McBride also submitted, Clauses 15 and 17 each provide for the respondent to reach a discretionary decision “whether to provide or contribute to the cost … ” and set out factors for the exercise of that discretion of the respondent. I agree that key points are that the respondent's assessment is one within its discretion and in respect of consequences of accidents rather than needs by reason of the appellant's marriage break-up, or her domestic circumstances more generally. However, there was no evidence before me that the relevant sufferings of the appellant were not consequences of covered accidents. It seems to me that any hesitation about that, which the respondent seemed to have from time to time, is not relevant in the present appeal before me. 
[37]
I can only agree with Mr McBride that the factors listed in each of the Clauses 15 and 17 are mandatory so they must be taken into account. It follows that the extent to which other household family members or other family members might reasonably be expected to contribute to the accident caused needs is one of those mandatory factors. The word “reasonably”, in all the circumstances, cannot be over-emphasised. Mr McBride also submitted that where there are non-accident family issues, then that factor might be a substantial one; and that submission must be correct. 
[38]
I also agree with Mr McBride that the respondent's scheme for such cares is not about an indemnity but is about cushioning of any loss. 
[39]
I also accept that a further factor to be accentuated is the requirement that the compensation provided favour “any rehabilitation outcome” as defined in Clause 12. 
[40]
There is no statutory mandate for the respondent to provide any, or any particular level, of child care or home help. However, it must exercise its discretion properly by weighing the various factors in assessing what injury-related needs it should fund. 
[41]
Mr Miller saw the real question as to what extent family members are expected to give up their own lives to assist the respondent. I would prefer to put the issue as to what extent family members can be reasonably expected to provide necessary home help and child care for the claimant. Both Clauses 15 and 17 refer to “the need to avoid substantial disruption to the employment or other activities of the household family members.” I feel that the respondent could have paid more attention to this factor in the present case. 
[42]
Mr Miller also emphasised that there is only one limited circumstance in Clauses 15 and 17 where there is an unpaid obligation of care from family members, namely, where the family member lived in the claimant's home and also provided child care or home help immediately before the personal injury. Mr Miller submitted that, in all other cases, the respondent must evaluate how much of a burden on family members is appropriate. In the present case, only the appellant's husband lived in the claimant's home before the relevant personal injury and, at material times, he was, realistically, no longer available to provide such cares. 
[43]
Both counsel dealt with a number of case authorities but most of these were under different legislation and I prefer to focus on the facts of the present case in terms of the content of the said Clauses 15 and 17. I accept that family members must be expected to undertake an extra burden when a member of their family is a claimant for the cares in issue, but account must be taken that such family members have their own lives to lead. However, it is all a question of a fair and sensible balance between family responsibility and the responsibility of the respondent pursuant to the Act. 
[44]
Mr Miller noted that Clauses 15 and 17 form part of the social rehabilitation part of the 2001 Act. He submitted that the purpose of social rehabilitation under s 79 is “to assist in restoring a claimant's independence to the maximum extent practicable”. He put it that it is hard to see how this is achieved through the respondent, effectively, forcing the appellant to give up her independence and move back to her parents' home at the time of her marriage break-up, and ignoring her repeated requests to move back. All that seems to me to be just one factor in the present equation. 
[45]
Mr Miller referred to the respondent's claim that further care hours could not be justified at the time of separation due to the interim nature of the claim. He submitted that seems to ignore that the respondent was already supplying home-based rehabilitation at that point. I agree with him that once the claimant's needs had changed it was very likely that her hours needed to be adjusted; but this case is about the respondent's 24 December 2002 decision which was 9 months after the separation. 
[46]
I agree that, in the present case, the reliance on the appellant's parents to provide the additional support she desperately needed caused a substantial disruption to their employment and other activities. I do not think that factor was sufficiently taken into account by the appropriate officers of the respondent. The criteria, or factors, in the said clauses refer to the avoidance of substantial disruption for household family members. That must apply even more to family members living away from the appellant's home. The appellant's parents were not household family members at the time of the appellant's accident, nor at the time of her request to the respondent for assistance, nor at the time of her marriage break-up. Her parents were leading demonstrably separate lives with their own business, family, and social requirements. Naturally, by default of other assistance they became household family members for the appellant and provided virtual round-the-clock assistance; but the respondent seemed to me to take advantage of their doing that. 
[47]
Mr Miller put it that the claimant and her parents estimate that the financial disruption to their lives, from what they perceive as the failure of the respondent can be fixed at $120,000. They provided a breakdown of that figure in a Schedule and seek compensation “for the care they were forced to provide causing substantial disruption to their own lives, as well as the financial cost of employing carers and loss of income”. However, I have no jurisdiction to deal with claims of consequential loss such as loss of business opportunities (for the parents) and disruption to their social commitments. Nevertheless, the Schedule of loss to the parents refers to substantial payments they made for child care and home help at material times. There were also payments for motel accommodation of caregivers. The relevant period is at least from 24 December 2002 to the next assessment date of 8 April 2003 but, possibly, until 14 July 2003 when the parents returned to their home and 24 hour care was soon provided. However, the respondent seemed to provide substantial care for a number of periods between December 2002 and July 2003. 
[48]
At this point I refer to the specific wording of Clauses 15 regarding child care and 17 regarding home help of the said Schedule. 
[49]
The provision of child care for the appellant would obviously assist her rehabilitation. There seems to be no real dispute that her sufferings and incapacities at material times were related to a covered injury. At material times, she had a young child or children but child care had only been provided by her and her husband who became estranged from her in March 2002. There was no particular reason why other family members (i.e. her parents) might reasonably have been expected to provide the appellant with child care services after her personal injury other than that out of dire necessity for the appellant. Her parents did this to the detriment of their own lives even though a criterion (or a factor) of Clauses 15 and 17 is that the respondent Corporation must have regard to the need to avoid substantial disruption to the employment or other activities of the household family members so that, as indicated above, that concept must apply even more so to non-household family members. 
[50]
In terms of home help, Clause 17(1)(b) refers to the extent to which the claimant undertook domestic activities before her personal injury and the extent to which she is able to undertake them after the injury. It appears that the claimant undertook most necessary domestic activities in the household and was at times almost totally unable to undertake them after her covered accident injury. Someone had to look after the child/children at material times, and the father had departed, and there were no other household family members before the appellant's personal injury. 
[51]
Mr McBride made very helpful submissions to the effect that I ought not disturb the discretion exercised by the respondent in this case from time to time. He referred to Alex Harvey Industries v CIR (2001) 15 PRNZ 361 where the Court of Appeal comprehensively addressed the approach to disturbing the exercise of discretionary assessments on appeal stating as follows: 
“11.
In this Court, Mr McKay launched a lengthy attack on the learned Judge's reasoning. He failed to persuade us, however, that Potter J exercised her discretion improperly. The decision which she reached was undoubtedly open to her. 
12.
Mr McKay favoured the test enunciated in Fitzgerald v Beattie [1976] 1 NZLR 265, at 268, and adopted by the majority (Thomas J dissenting) in Neumegen v Neumegan and Co [1998] 3 NZLR 310 at 320, when deciding an appeal against the exercise of a discretion. The Court, it was said, will not disturb the order made in the discretion of the Judge at first instance unless it is satisfied that the Judge had proceeded on a wrong principle or had given undue weight to some factor or insufficient weight to another or is plainly wrong. 
13.
But this Court has more recently indicated that it prefers the formulation in May v May [1982] 1 NZFLR 165, at 170, to that of the Court in Fitzgerald v Beattie. See Harris v McIntosh CA 279/98, 30 September 1999, at 4-5. That formulation reads: 
… an appellant must show that the Judge acted on a wrong principle; or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong. 
14.
The significant difference is that the latter test omits any reference to the Judge having given undue weight to some factor or insufficient weight to another. Weighting and balancing the various factors is an integral part of a Judge's exercise of his or her discretion. This Court will not repeat that exercise unless the Judge has given such excessive weight to some factor or such patently inadequate weight to another as to be ‘plainly wrong’. The problem is that, if the phrases ‘undue weight’ and ‘insufficient weight’ have this meaning, they are tautologous and unnecessary. If, on the other hand, they do not have that meaning they suggest that the Court will be prepared to substitute its view for that of the Judge - which it will not do. 
15.
We therefore reiterate that the formulation in May v May, as endorsed in Harris v McIntosh, is to be treated as the applicable test for examining on appeal the exercise of a discretion in the Court below. ”
[52]
Mr McBride then submitted that both the Review Officer and the respondent Corporation correctly applied the law having weighed the appropriate various factors and there has been no wrong principle in the exercise of the discretion in this case. Mr McBride put it that the appellant focuses on one factor to which she says insufficient weight was given. He accepts that the question for this Court is whether the respondent has been shown to have acted outside the range of reasonable responses to the circumstances and that imports the question whether no reasonable person in the circumstances could have arrived at the answers of the respondent in response to the appellant's claim for assistance. He refers to the assessment exercise undertaken by the respondent at material times and, particularly, to medical opinion from the said Mr Cleary that the appellant's rehabilitation required her “trying to do more each day in the way of looking after her children and her home to try and become more independent … ”. Mr McBride referred to other assessments relied on by the respondent being to the same effect and to the respondent's decisions according with advice by the expert assessors appointed under the Act. I agree with him that the views of Ms de Montalk cannot supplant the decision of the statutory decision-maker, but they are relevant and helpful. 
[53]
Mr McBride submits that the respondent's discretion was properly exercised taking account of the factors and giving them such weight as the respondent saw fit. He submits that the relative weighting of the facts is not a matter amenable to appeal and that, in any event, the answer arrived at by the respondent was well within the bounds of reasonableness. 
[54]
Nevertheless, it seems to me that the facts speak for themselves. If the respondent had a credibility problem regarding the appellant at material times, that was not dealt with before me, and I have no reason to doubt the credibility of the appellant. The fact is that she needed much more care provision from the respondent than at various times she got, and her parents were obliged to make up that deficiency to an undue extent. I consider that the respondent did not act reasonably enough and that its exercise of the relevant discretion was unrealistic. However, the judgement of its officers must have been clouded by the stridency and volume of communications from the appellant's family and the great tensions among all concerned. 
[55]
The parties did not become sufficiently precise before me about the period for which the cares were denied - although the respondent submits that it was for a maximum of five weeks; nor about the further hours of care with which the appellant should have been fairly provided; nor about the manner of reimbursement, at this stage, to the appellant for that failure. Accordingly, at present I simply rule that I find in favour of the appellant in principle. Her appeal succeeds. I need further evidence from each party confined to quantum which would seem relatively modest (perhaps in the range $2,000 to $8,000 or so). However, I would expect that, in the light of the views I have expressed, the parties could reach a settlement figure about quantum. Accordingly, I reserve leave to apply on quantum and on costs; although, in the latter respect, the appellant should be reimbursed for all disbursements related to this appeal and I would expect about a $1,500 contribution to her legal fees from the respondent. 

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