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Accident Compensation Cases

Broadbelt v Accident Compensation Corporation (HC, 09/04/90)

Judgment Text

ORAL JUDGMENT OF TOMPKINS J 
TOMPKINS J
The respondent has applied for leave to appeal to the Court of Appeal against the decision delivered by me on 19 December 1989. It has also applied for leave to extend the time for appealing. 
Background 
On 1 September 1985 the appellant was in New Zealand on holiday. On that day he suffered very severe injuries in a motor accident that resulted in a fracture of his cervical spine as a consequence of which he is now, and always will be, a quadriplegic. Following his return to England he on 30 June 1986 purchased a wheelchair at the cost of £1,438.36. Also shortly following his return to England alterations were carried out to his house to enable him to live there will his wife and two young children. The cost was £11,691.03. He claimed these amounts from the Corporation. The Corporation accepted that these amounts were spent for these purposes, but considered they were not payable under the Act. 
That decision came before the review officer. He, for reasons that were acknowledged at the hearing before the Appeal Authority and this court to be wrong, upheld the decision of the Corporation. The appellant then appealed to the Appeal Authority. He, for a number of reasons, one of which was accepted by the respondent in this court to have been wrong, upheld the decision of the review authority. The appellant appealed to this court. In my decision delivered on 19 December 1989 I held that the decision of the Corporation that the amounts were not payable under the Act was wrong, and further that the Corporation should pay interest at the Judicature Act rate on the amount that should be paid to the appellant. 
It will be noted that the accident happened almost five years ago. The expenditure was incurred almost four years ago. The appellant could justifiably view with incredulous disbelief the time that has been occupied and the number of hearings involved in determining what I am sure to him must seem to be a simple and straight-forward issue. It is unprofitable for me to go in to the reasons for the delay; suffice it for me to observe that the aim of those responsible for designing and implementing the scheme to ensure that compensation payments were made promptly, can hardly be said to have been achieved in this case. 
The Statutory Provisions 
Section 112 gives to any party dissatisfied with any determination or decision of the Administrative Division of this court to appeal with leave of that division to the Court of Appeal by way of case stated for the opinion of that court on a question of law only Subsection (3) provides: 
“(3) The Administrative Division may grant leave accordingly if in its opinion a question of law involved in the appeal is one which by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for decision. ”
The time for appealing is 28 days after the date of the decision of the Administrative Division. Subsection (11) empowers the court to extend the time prescribed for filing an application for leave to appeal. 
The Questions 
The respondent seeks to submit to the Court of Appeal two questions of law, namely: 
(a)
The interpretation of section 80(1) of the Accident Compensation Act 1982, and in particular whether the respondent has a discretion or is otherwise entitled to pay compensation for actual and reasonable expenses necessarily and directly resulting from the injury where such expenses are incurred outside of New Zealand and payment of such expenses could have been made as rehabilitation assistance under sections 36 and 37 of the Accident Compensation Act 1982. 
(b)
Whether the Accident Compensation Corporation has power or is otherwise entitled to pay interest on the amount of any actual and reasonable expenses incurred by a claimant which are the subject of a payment of compensation under section 80(1) of the Act. 
General or Public Importance 
It is submitted on behalf of the respondent that both questions are of general or public importance. As to the first, the issue, as the question itself indicates, is whether the Corporation has a discretion to pay compensation for actual and reasonable expenses incurred outside New Zealand in relation to an injury which took place in New Zealand for which there was cover under the Act. The issue is a little more confined than that, because as I understand the Corporation's case, it is that such expenses are able to be not paid where they are within the rehabilitation provisions in the Act, and it is the Corporation's contention that they are not payable because the rehabilitation provisions under the Act make it clear that such payments can only be made if the recipient is in New Zealand at the time the expenses were incurred and the claim is paid. 
Mr McKenzie submits that the interpretation given by this court to the relevant sections in the Act is counter to the established policy of the Corporation, and also reverses the decision of the Appeal Authority. 
I am prepared to accept, with considerable reluctance, the reason for which I shall express later, that the issue in this case does involve a question of law of general or public importance. It concerns an issue that could arise frequently, although I note that the Commission has not attempted to put before the court details of other cases where the issue has arisen in the past. And I accept that it may be of importance to have determined whether the approach that I adopted, namely, that the rehabilitative provisions and the compensation provisions in the Act should be separately regarded, is the correct one. 
As to the second question, it is submitted by the Corporation that the decision of this court that in the particular circumstances of this case the Corporation should pay interest on the amount is a matter of general importance that would apply not only to cases that are factually similar to this, but other cases where payment of compensation have been materially delayed. It is relevant in this context to observe that the amounts involved are not large, but nor are they insignificant. The expenses amount to approximately $39,000 and the interest on that amount, so I am informed by Mr McDonald, is approximately $13,000. My decision to award interest is contrary to the early decisions of the Appeal Authority in Re Greacen (1987) 6 NZAR 489 and Re John (1988) 7 NZAR 242. Mr McKenzie tells me that it is also contrary to a ruling of Greig J in Appleby v ACC (M544/87, Wellington Registry, 23 August 1989). 
I am also, with the same reluctance, prepared to accept that the question as to whether the Corporation has a discretion to, and should, pay interest on substantial compensation payments, the payment of which has been delayed, is an issue of general or public importance 
The Time for Appealing 
The appeal was 17 days late. The reason for the failure to appeal within time is explained in the affidavit of Peter Coleman Duncan, a solicitor employed by the Department. He deposes that the decision was delivered on 19 December 1989, that he went on vacation that day and he did not see a copy until he returned on 15 January 1990. He immediately sought authorisation to appeal. He does not explain why some other officer in the Corporation did not take some note of the judgment and appreciate its significance. 
Having decided that the matter merited further consideration, the Corporation instructed the counsel presently acting for it on 17 January 1990. The application for leave to appeal to the Court of Appeal was filed on 5 February 1990. The application to extend the time was filed on 16 February 1990. No explanation has been given for the delay up to the time of filing. However, I accept that the delay was short, and that the intervention of the vacation is at least partially an explanation. As Mr Duncan in his affidavit points out had the Court of Appeal Rules applied where the time of the vacation is excluded from computing the time, the appeal would have been within time. 
Conclusion 
Section 112(3) provides that the Administrative Division “may” grant leave if the requirements of the subsection are fulfilled. So, even in those circumstances there remains a discretion vested in the court whether or not leave should be granted. The argument against doing so is the inordinate time that has been taken in having these issues decided to which I have already referred. 
I am informed by counsel that there have been discussions concerning the possibility of an ex gratia payment, but the Corporation apparently considers that there are administrative, or rather I suspect bureaucratic, reasons against adopting that course. However, despite those factors and the very considerable sympathy that I have for the appellant in the way his claims have been treated thus far, I have concluded that the proper course is to grant leave. As was pointed out in argument, if it were refused here the Corporation could then apply to the Court of Appeal; a process which may in the end result in even more time being expended. 
The reasons for the reluctance I earlier expressed are probably obvious from what I have said about the delay that has already occurred. I have considerable sympathy for the appellant having had to wait so long, and now even longer, to have the issue finally detirmined. But I have concluded that in the circumstances, there is no alternative. 
There will, therefore, be orders granting leave extending the time for filing an appeal until 5 February 1990 and, pursuant to s 112(2), leave to appeal to the Court of Appeal will be granted, but on stringent conditions as to time. 
Mr McKenzie has asked that I extend the time for filing the case stated. That time being pursuant to s (5) 14 days or such further time as the judge may allow. That application is firmly refused. His grounds for doing so, namely, that the Easter vacation is pending followed by the Commonwealth Conference are totally unconvincing. It is time the Corporation and its advisers realise that this matter must be treated with unusual promptness. I had in mind shortening the time, but the subsection does not allow that. It will certainly not be extended. If that time is not complied with, the appellant should immediately apply to this court to revoke the granting of leave. 
The case on appeal is to be prepared and filed in the Court of Appeal within 21 days from today. The praecipe to set the appeal down is to be filed within seven days after the filing of the case on appeal. 
Although there may be no particular grounds for asking the Court of Appeal to treat this appeal with priority, I respectfully draw to the court's attention the observations I have made concerning the delays with which this unfortunate appellant has been faced, and express the hope that that court may be able to deal with the appeal reasonably promptly. 
Concerning costs I record the assurance given to me today by Mr McKenzie on behalf of the Corporation that the Corporation agrees to pay the appellant's reasonable solicitor and client costs, and disbursements in prosecuting the appeal irrespective of the result. I confirm that counsel accepts that the costs of the hearing of the two applications before this court today are to be included in that undertaking. 

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