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Accident Compensation Cases

Bosman v Accident Compensation Corporation (DC, 22/04/05)

Judgment Text

Judge D A Ongley
The primary issue in this case concerns the application of s 149 of the Accident Compensation Act 1982 to a case where the appellant suffered an injury during the currency of the 1982 Act but was not discharged from hospital until after the commencement of the Accident Rehabilitation and Compensation Insurance Act 1992. The question is whether he was “entitled to receive any compensation” under s 80(3) of the 1982 Act immediately prior to the repeal of that Act. 
For completeness s 149(1) is set out: 
“149 Compensation For Pecuniary Loss Not Related To Earnings 
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to apply to payments in respect of that person until the [30th day of June 1993] as if those sections had not been repealed. ”
The argument concerns jurisdiction, that is to say whether there was entitlement to compensation for personal care only under the 1992 Act and subsequent Acts, or also under the 1982 Act. The appeal does not involve the weighing of evidence of need for constant personal attention. Neither is it concerned with a claim for backdating payments for a period prior to a written application. 
Mr Bosman was involved in a motor vehicle accident on 10 May 1992, about six weeks before repeal of the 1982 Act. A claim for cover was made and accepted during June 1992. He remained in hospital until his discharge on 10 July 1992 after the commencement of the 1992 Act. 
Mr Miller contends that compensation for attendant care could possibly be claimed under the following parts of s 80 of the 1982 Act. 
“80. Compensation for pecuniary loss not related to earnings - 
Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any other compensation payable, may - 
Pay to any person, or to the administrator of the person, such compensation as the Corporation thinks fit for any identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person while he is suffering from incapacity resulting from the injury or in taking any necessary action following and consequential upon the death of the injured person. 
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. ”
But I accept as correct Mr McBride's submission that, while Mr Bosman was continuously in hospital, constant personal attention must have been provided through the public hospital system. Mr Bosman's family members might have had to provide additional care but it could not possibly have been constant personal attention for the necessary care described in s 80(3) of the 1982 Act. 
From the date of discharge personal care compensation was available under the 1992 Act and Regulations. It appears that was assessed and payments were made at varying levels. Various reviewable decisions were issued in respect of that compensation. Ultimately Mr Bosman was assessed under the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 for 24 hour care. 
Mr Miller says that Mr Bosman's injuries involve total blindness, head injuries, amputations of his right arm, amputation of right shoulder, left arm and hand injuries leaving him with a crippled grip aid and depression that caused him to contemplate suicide. Consequently, it is claimed that he has always needed 24 hour attendant care, but inadequate amounts of care were awarded until 20 September 1994 when it was recognized that 24 hour care was needed. 
In January 2004, the Corporation issued a further decision providing for backpayments of in excess of $375,000 attendant care compensation under the 1992 and 1998 Act for the period from July 1992 to October 2000. 
The reason for the appeal is that the appellant seeks better provision under the 1982 Act than he received under the 1992 and 1998 Acts. The narrow argument on appeal does not concern the quantum of compensation which should have been received, and evidence of the actual degree of care has not been provided except by way of general context. But the date of discharge from hospital is an uncontested fact and the respondent's submissions bear on that being the earliest possible date from which the Corporation could be liable for attendant care. 
The argument rests on the decision in Campbell & Handley v ACC CA 138/03, 29 March 2004 in which the Court of Appeal interpreted the wording “entitled to receive” in s 149 as covering claimants who had been injured when the 1982 Act was in force, and who would have had an entitlement to payment if they had made a claim and had a proper discretion exercised in their favour. 
Mr McBride submitted that s 149 refers to entitlement to receive particular compensation, and that in the present case the appellant has to show that he had an entitlement before 1 July 1992 to attendant care compensation under s 80(3). He submitted that it is not enough to show an entitlement to any other compensation under s 80. The appellant needs to show there was an entitlement to full time attendant care compensation under subs (3). 
Under s 80(2)(b) there was provision for compensation for identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person. A number of decisions including Mollgaard v ARCIC [1999] 3 NZLR 735 have left room for argument whether that description of detriment includes the opportunity loss suffered by a person providing care to an injured person. There is no absolute reason why such care could not have been provided to a person in hospital. But Mr McBride submits that a viable claim for one form of compensation under s 80 does not open the door for compensation under that section generally. For example if a person was entitled to compensation for travelling to hospital, does that mean that s 80 shall continue to apply to payments in respect of that person by virtue of s 149? 
A collateral issue is the identity of the person receiving compensation. The s 80(2)(b) provision applies to persons assisting and s 80(3) applies to the injured person himself. They are different forms of compensation. 
Mr McBride has submitted that Campbell & Handley does not assist the appellant because it turned on the proposition that a claimant who had not applied for entitlements before the revocation of the 1982 Act was still a person entitled to receive s 80 compensation under s 149, despite the need for exercise of a discretion by the Corporation before the compensation could actually be received. In the present case, it is alleged that Mr Bosman could not be regarded as being entitled to receive compensation under s 80(3) because it was logically impossible for him to receive any compensation under s 80(3) 
There is a decision of the Accident Compensation Authority on very similar facts in Dorizac (ACA 8/01). That was decided before the appeal judgment in Campbell & Handley. The ACA decision referred to Estate N Taite v Taite (unrep. High Court, Rotorua M13/00, 23 May 2002) in which Chambers J held that an injured person who should have been receiving compensation described in a transitional provision, but was not receiving such compensation because the ACC misapplied the law, should be treated, for the purposes of the transitional provision, in the same way as a person actually receiving that compensation. The Authority distinguished Taite on the footing that in Dorizac there had been no entitlement shown at all. This case is the same in all relevant respects. 
I agree with Mr McBride's submission about impossibility of receiving compensation under s 80(3). This is not a case turning on evidence of the extent of care provided. The date of discharge from hospital is uncontested and it is logically impossible for parents to have provided constant personal attention that qualifies as necessary care under s 80(3). They could have provided some necessary attention, and that might have been significant, but it could not possibly have amounted to constant personal attention. Judgments in this Court in Messner (180/97) and Devidasi (ACA13/99) have assumed that to be the case. 
Whether a person was entitled to receive s 80(3) compensation is not only a question of law, but of mixed law and fact. There is a proposition of fact in this case which does not require determination by hearing evidence. 
I accept also the submission that s 149 of the 1992 Act does not refer to a general possibility of receiving any compensation under s 80 of the 1982 Act. It would make no sense to have a provision preserving a right to compensation under s 80(3) for constant personal attention, only because there was an unpaid or unclaimed entitlement for an expense incurred by a parent or other person giving help to the injured person. 
The words of the section refer to a person receiving or entitled to receive any compensation, and payments due to “that person”. That suggests that the compensation preserved by s 149 is based on a specific rather than a general entitlement. It is at least inconsistent with a person entitled to receive compensation under s 80(2)(b) being the basis for another person to remain entitled to compensation under s 80(3). 
The various rights to compensation in s 80 have a common feature of being for losses or effort expended resulting from personal injury by accident. The categories of loss described in the subsections are in each case different and differently described. The evident purpose of s 149 is to preserve a right to compensation where an entitlement has arisen. It is most consistent with that purpose, that the entitlement should be for one of the forms of compensation described in s 80, and not all of them. 
Mr Miller has submitted that the Court should adopt a construction consistent with a generous and unniggardly application of the statute: ACC v Mitchell [1992] 2 NZLR 436. But this is not a case where there is a compelling need to do so. Although the appellant's claim was not properly recognised and it took some years to obtain reasonable assessments of need, he has been able to access continuous personal care compensation from the time of his discharge from hospital. Any injustice that might have occurred has been in the administration of the claim, and the quantum of compensation may have been pared down by the policy applying in the regulations. There has been no denial of access to compensation of a kind which should cause the Court to apply a purposive interpretation to the wording of s 149 of the 1992 Act. 
Therefore the appeal is dismissed. 

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