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Accident Compensation Cases

Estate of Hollingsworth v Accident Compensation Corporation (DC, 15/03/13)

Judgment Text

Roderick Joyce QC Judge
This has been an application for leave to appeal to the High Court on a question of law the 18 October 2012 judgment of Judge Beattie in which he held that the late Mr Hollingsworth's estate could not lay claim to a grant of lump sum compensation after his death because Mr Hollingsworth had died before there had been any assessment of him for the purpose of identifying any such entitlement under cl 59 of Schedule 1 to the 2001 Act. 
The case has obviously been pressed by Mr Hollingsworth's widow, Patricia Hollingsworth, and it appears to have before been accepted that she was the legally appropriate person to do that. In any event nothing is to be gained at this point from further enquiry in that respect. 
It is obvious, and completely understandable for Mrs Hollingsworth, that the loss of her husband and the surrounding circumstances have been a matter of high distress and pain and at one point Mrs Hollingsworth made a complaint to the Health and Disability Commissioner whose decision of 22 December 2011 is amongst the papers before me. 
It is obvious from this decision that Mrs Hollingsworth had been much exercised by a perceived delay in her late husband's diagnosis of mesothelioma. It seems that prior to his death he underwent some number of investigations notwithstanding which it was only at autopsy that the diagnosis was made. And this, so it would appear, goes to explain why no point had arisen before Mr Hollingsworth's death when, in other circumstances, he might have undergone a cl 59 assessment. 
Here I note what the Commissioner said close to the end of the decision in question which was this: 
“I have also asked the DHB to consider implementing a policy to ensure that patients and staff are aware of the need to ensure ACC claims for known occupational asbestos exposure are lodged prior to death. I intend using your complaint (with identifying details removed) to educate other DHBs about the importance of ensuring staff are aware of the fact that ACC lump sum compensation claims for illness as a result of work-related asbestos must be lodged prior to death. ”
When the appeal here in question came before Judge Beattie there was something of a procedural tangle compounded by the fact that review applications relating to Corporation determinations or what the applicant considered to amount to such had been lodged out of time. 
But sensibly, if I may respectfully say so, the Judge grasped the fundamental nettle by putting to one side such procedural difficulties as were identified in favour of making a determination of the substantive issue of whether or not there was, in the circumstances, an entitlement to lump sum compensation under the Act arising from the post Mr Hollingsworth's death affording by the Corporation of cover for a work related personal injury. 
The nettle thus grasped His Honour went on to say and hold as follows: 
This issue has already been the subject of decisions from the respondent and the reviewer, and I can only confirm the correctness of those decisions, having regard to the statutory provision which governs the granting of lump sum compensation to a claimant. It is the case that clause 54(1)(b)(ii) is the applicable provision, and it states that a claimant is entitled to receive lump sum compensation if the claimant is alive when assessed under clause 59 and is assessed as having a Whole Person Impairment of 10 percent or more. 
In the case of the deceased, he was of course deceased before there was even a grant of cover for his personal injury, and therefore it is the case as a matter of law that there can be no entitlement to lump sum compensation as no assessment of impairment could be had, and that I rule is the end of the matter. Representatives of the deceased are totally misguided at thinking that there may be an entitlement to lump sum compensation for the injuries suffered by the deceased, and I trust that this decision finally clarifies the matter. This appeal is dismissed. ”
The nature of the leave application 
On 8 November 2012 the registry received an application signed by Mrs Hollingsworth in which she sought leave to appeal to the High Court. It is apparent from what she submitted that despite the standard advice given by the registry upon the issue of a judgment that further recourse is only on a question of law Mrs Hollingsworth believed there was a general right of appeal to the High Court. Certainly her submission does not identify in any clear way a possible question. 
What in summary was put forward was that: 
There had been a breach of s 27 of the New Zealand Bill of Rights Act in the form of a denial of natural justice in some fashion unspecified. 
That Mrs Hollingsworth as a New Zealand Maori considered her rights under the Treaty of Waitangi had been breached; and, coming to the nub of her complaint — 
“it is the fact that the deceased was employed by the State, contracted the industrial disease whilst employed by the State, later misdiagnosed by health professionals employed by the State at Rotorua Hospital, later misdiagnosed by a health professional trained by the State, and subsequently denied full compensation by State owned ACC due to a legal professional acting without client direction”; so that 
“With respect, it is submitted that clause 59(1)(b)(ii) in this instance was impossible for the deceased to be assessed under and given the circumstances aforementioned, a breach of natural rights to justice, and also a breach of the provisions guaranteed by HM the Queen, under the Treaty of Waitangi has occurred, in that, Kevin Hollingsworth was his widow's most cherished taonga or treasure. The widow has been denied this man's love, companionship and as a working man, wage earner, the economic advantages of his employment. This has happened whilst the deceased was an employee of the State and entitled to protection, whilst working, of the Health and Safety requirements of the State”; hence leave was sought to — 
Appeal under the Treaty and the Bill of Rights. 
The Corporation's response 
In reply the Corporation first of all rehearsed the need, on the making of an application for leave to appeal on a question of law, for the applicant to identify one that was both serious and arguable which, so the Corporation then contended, was not the case here. 
Noting that the applicant's case came down to references to the Treaty and the Bill of Rights the Corporation made this submission: 
The issue is one to be determined under the 2001 Act. Neither the Treaty of Waitangi nor the New Zealand Bill of Rights Act 1990 can alter the effect of cl 54(1) of Schedule 1 to the 2001 Act. 
As the Court noted, the appellant faced several jurisdictional hurdles before the substantive matter could be determined. The Court held that, in any event, the substantive matter could not be determined in the appellant's favour, as the plain wording of cl 54(1)(b)(ii) to Schedule 1 to the 2001 Act requires that the claimant ‘is alive when assessed under cl 59’
The claimant was not alive when an application for lump sum compensation was made, and accordingly was not ‘alive when assessed under cl 59’
The wording of cl 54 is clear and unambiguous. It is evident from the emphatic language used in the judgment that the Court considered the requirement to be plain. ”
I first of all set out cl 54: 
“Lump sum compensation for permanent impairment 
The Corporation is liable to pay the claimant lump sum compensation in accordance with this Schedule, if — 
The claimant has suffered personal injury, after the commencement of this Part, for which he or she has cover; and 
The claimant — 
Has survived the personal injury for not less than 28 days; and 
Is alive when assessed under clause 59; and 
An assessment carried out under clause 59 establishes that the claimant's personal injury has resulted in a degree of whole-person impairment of 10 percent or more. 
As to clause 59: 
“Assessment of entitlement to lump sum compensation 
After the Corporation receives a certificate under clause 571
| X |Footnote: 1
Reference to which makes plain the need for a formal certification only capable of being made when the claimant is alive. 
, the Corporation must authorise an assessor to do an assessment of the claimant. 
An assessor assesses the claimant's percentage of whole-person impairment. 
In doing an assessment under this clause, an assessor must — 
Assess the claimant in accordance with regulations made under this Act; and 
Exclude from the assessment any permanent impairment — 
That does not result from personal injury for which the claimant has cover under this Act: 
Arising from personal injuries suffered before the commencement of this part; and 
Include in the assessment any permanent impairment for which the claimant has received lump sum compensation under this part. 
The first obvious point is that cl 59 cannot come into play at all unless and until the Corporation has received a cl 57 certificate which, in the way matters developed in the present case, never happened. In fact so the Court understands, cover itself was only afforded after death. The other and obvious point is that the claimant in question must be alive so as to be available for assessment under s 59 or, for that matter and in the first instance, certification under cl 57. 
In the unfortunate sequence of events in the present case those pre-requisites were not met and, as will be seen from the extract I have taken from the decision of the Health and Disability Commissioner, that office has sought to ensure that repetition of a sad case like this might be avoided. 
That however is, as I acknowledge in unqualified terms, no comfort whatsoever nor certainly of any help to Mrs Hollingsworth in the present case. 
I appreciate the sincerity with which she puts forward her references to the Treaty and the Bill of Rights, but whatever the way in which either or both might be sought to be invoked they cannot trump, that is to say defeat, the clear wording of the clauses of Schedule 1 (part of a Parliament made statute) that unequivocally rule out any room for relief in this case — something that Judge Beattie tried to convey at the end of his judgment. 
So it follows that this is a case where the law is clear cut — one where (unsurprisingly in that state of affairs) the applicant has been unable to identify a seriously arguable legal issue that, if successful, might have brought a different result from that delivered by the judge in his appeal judgment. 
I am therefore bound to dismiss the application and it is dismissed accordingly. 

Reference to which makes plain the need for a formal certification only capable of being made when the claimant is alive. 

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