Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Teviotdale v Accident Compensation Corporation (HC, 09/07/92)

Judgment Text

JUDGMENT OF DOOGUE J 
DOOGUE J
INTRODUCTION 
1.
This is an application for special leave to appeal to this Court from a decision of the Accident Compensation Appeal Authority (“Appeal Authority”) under the proviso to s 111(1) Accident Compensation Act 1982 (“the Act”). The Act is now repealed by the Accident Rehabilitation and Compensation Insurance Act 1992, but s 152 of the latter Act preserves the applicant's rights under the Act. 
2.
Section 111(2) of the Act provides that this Court may grant leave on a question of law or if in its opinion the question 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 High Court for decision. 
3.
The applicant seeks leave to appeal upon the basis that a claim for alleged losses and expenses under s 80(2)(a) of the Act was not dealt with by the Appeal Authority and, secondly, that his claim under s 80(2)(b) of the Act was wrongly dealt with in law by the Appeal Authority. 
BACKGROUND 
4.
The applicant suffered an accident in the ambulance bay of the Rotorua Hospital on 6 January 1986 when he was seeking to assist the removal of a patient in a stretcher from an ambulance. The applicant is a physician employed at the hospital. It is probable that the actual accident occurred outside the ordinary course of his duties but plainly whilst still on the premises of his employer. 
5.
The respondent refused certain of the applicant's claims for costs and expenses which he said he incurred as a result of his accident. The applicant then applied for a review hearing in terms of the Act. A decision was given by the hearing officer on 27 February 1987 following a hearing on 6 August 1986 when the applicant represented himself. In the course of the decision of the hearing officer he said this: 
“Dr Teviotdale then went on to say he considered his other losses claimed for fell under section 80(2)(b). He considers that while giving help to the injured person as he himself suffered an injury as a result of which he incurred expenses and losses as listed by his solicitor these are covered under section 80(2)(b). I cannot agree with this and in my opinion any claim lies under section 80(1) as there is no dispute in that Dr Teviotdale himself suffered personal injury by accident and it was as a result of his injuries that he allegedly incurred the various losses and expenses claimed. The following matters were then discussed: 
Dr Teviotdale noted a number of matters he felt should fall under section 80(2)(a). These were house construction, gardening (produce and vegetables), the loss of service involved in looking after his children's goats (he has four children each of whom own 20 goats). He claims the house construction was a loss of service to both himself and his family. He detailed an extensive past history of home construction and alteration in Dunedin, America and Rotorua. Some 14 months or so ago he again moved into another property and built what he terms an embryo transplant unit associated with his goat farming. In fact this is the basement area of the dwelling. Over the last 14 months or so he considers the value of his services in building operations was in the order of $36,000.00 to $38,000.00. It is on this basis he considers he has given services to himself and family to the extent above and that the relevant section of the Act (section 80(2) can be of benefit to himself as well as others. Since the accident he states he has been unable to render the services to his family and himself and considers he should be compensated by a weekly payment. I do not consider the intention of the legislation is to make allowance for this type of expense. Section 80(2)(a) is in my opinion designed to make allowance for a quantifiable loss of service of a domestic or household nature proved to be suffered by a member of the household. Service in this sense means that the regular providing of help or assistance by one person to another on which that person is dependant for the maintenance of his standard or manner of living. The services required to relate to domestic or household work of a regular nature, eg housekeeping etc. I do not consider the claim made by Dr Teviotdale is acceptable under this section of the Act. ”
6.
The applicant then appealed to the Appeal Authority and represented himself on 21 July 1987. He claimed that he met the jurisdictional requirements of section 80(2)(a) and (b). The Appeal Authority dismissed the appeal on 24 August 1987. The Authority took the same view as the hearing officer that if the appellant was to succeed in respect of his claims he had to rely upon s 80(1) of the Act. 
7.
The decision of the Appeal Authority does not direct itself to the provisions of s 80(2)(a) of the Act except by implication. The decision does direct itself to the claim under s 80(2)(b) of the Act. In respect of that provision the Appeal Authority said: 
“It was the submission of Dr Teviotdale that because of giving help to the injured person he had suffered identifiable and reasonable expenses or losses. It was pointed out by Mr Mines and I agree that that is not the purpose of s 80(2)(b). I think the matter is covered adequately by Blair Accident Compensation in New Zealand page 22. He refers to the submission and says: 
‘This subparagraph aims to recompense the person who incurs expenses or losses while helping an accident victim or in taking necessary action following the latter's death. The loss must be identifiable and reasonable. Accordingly the Good Samaritan who ruins his suit while extricating a victim from a crashed car could claim for the cost of his suit. So also could a claim be made for the costs of rescuing an injured mountaineer or for recovering his dead body. But the cover of the subparagraph is limited, and specifically related to the need to give help to the injured person (see Re Harcombe (1980) 2 NZAR 190 at 193). The cover does not extend to expenses unrelated to giving such help, or in coping with all the practical problems following a death. ’
Here the appellant assisted the ambulance driver with the injured person and assisted when that person was admitted to the hospital. Then the help to the injured person ceased. It will be noted that the subsection limits the compensation to giving help to the injured person while he is suffering from incapacity. So far as I am concerned s 80(2)(b) does not help the appellant. ”
8.
Following that decision the applicant for the first time instructed counsel, and an application was lodged to the Appeal Authority for leave to appeal on 18 September 1987. Submissions on behalf of the appellant were lodged with the Appeal Authority on 18 April 1988. For reasons which are not clear submissions in reply by the respondent were not lodged with the Appeal Authority until about 3 November 1988. 
9.
Before the applicant had had any opportunity to reply to those submissions a decision was given by the Appeal Authority on 8 November 1988 refusing the application for leave to appeal. The Appeal Authority said that it did not accept the applicant's submission that the Appeal Authority did not consider the applicant's submission that his claim came under s 80(2)(a) of the Act, because it was implicit in the Appeal Authority's decision that the Authority had considered that the only section which could possibly assist the applicant was s 80(1), thereby rejecting the argument that a claim lay under s 80(2)(a). The decision went on to record that the Appeal Authority considered that the earlier decision of the Authority was a decision based on the facts of the case, with there being no dispute as to the law and no matter of general or public importance involved. As a result, the application was refused. 
10.
The present application was then lodged in the Administrative Division of this Court at Wellington on 9 December 1988. No steps were taken by the respondent, and the application was set down unilaterally by the applicant by the filing of a praecipe on or about 2 August 1989. It then took some time for the Appeal Authority and the respondent to lodge the requisite papers to enable the matter to be dealt with. 
11.
By February 1990 counsel for the respondent was involved, and by agreement it was arranged that the file was to be transferred to this registry. That was to have happened in July 1990. For reasons outside the control of the parties the Court file was not located in the Wellington registry until March 1992, when it was forwarded to this registry. 
THE PRESENT APPLICATION 
12.
The present application seeks to enable the applicant to recover losses and expenses which he claimed resulted from his accident arising out of assisting with the handling of the patient in the stretcher on 6 January 1986. The nature of the losses and expenses incurred relates partly to a goat farming enterprise in which the applicant and his family were involved, partly to activities undertaken by him in respect of the construction of his own home, and partly in respect of other household and domestic activities. 
RELEVANT STATUTORY PROVISIONS 
13.
Section 80(1) and (2) of the Act provide: 
“80
(1)
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 and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him, or in the event of his death to his administrator, compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury or death, not being — 
(a)
Any expense or loss in respect of damage to or diminution in value of property (whether real or personal, tangible or intangible, or movable or immovable) or any estate or interest in such property; or 
(b)
Any expense or loss incurred after the death of that person in respect of the administration of his estate; or 
(c)
Any expense or loss arising from damage in respect of which payment is excluded or limited under section 76 or section 77 of this Act; or 
(d)
The loss of an opportunity to make a profit; or 
(e)
Any loss arising from inability to perform a business contract; or 
(f)
Any loss that has not for the time being actually occurred, whether or not the amount thereof is ascertainable before it occurs; or 
(g)
Any expense or loss in respect of or towards payment of which compensation is otherwise payable under this Act whether or not any such compensation is actually paid; or 
(h)
Any expense or loss which the Corporation considers is similar in nature to an expense or loss for which compensation is payable under any other provision of this Act, whether or not any compensation is actually paid under such other provision. 
(2)
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 — 
(a)
Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such weekly compensation as the Corporation thinks fit for any quantifiable loss of service of a domestic or household nature which was previously provided on a regular basis and which is proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Corporation thinks fit, not being longer than the period for which that member could reasonably have expected to receive the service: 
(b)
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. ”
APPLICANT'S FIRST SUBMISSION: S 80(2)(a) 
14.
The applicant submits that leave to appeal should be granted in respect of the applicant's claim under s 80(2)(a) of the Act upon the basis that the Appeal Authority should have considered the appeal of the appellant under this heading. It is submitted that special leave to appeal should be granted under the provisions of s 111(2) enabling this Court to grant leave “for any other reason”. The point is made that if the ground of appeal was not considered by the Appeal Authority then it ought to have been and that the matter should be referred back to the Appeal Authority for consideration. 
15.
One naturally has some sympathy for this part of the applicant's case, as the Appeal Authority did not direct itself to the claim under s 80(2)(a), and no part of its decision reviews the hearing officer's decision in respect of that aspect of the claim. The problem for the applicant is that he cannot refer to any evidence before the Court relating to any quantifiable loss of service of a domestic or household nature which was previously provided on a regular basis upon which it is possible the claim could be upheld by the Appeal Authority. If there were any evidence before the Court which might substantiate a claim under s 80(2)(a), there might be some justification for the Court to consider a referral back, notwithstanding that it is implicit in the decision of the Appeal Authority that it was of the same view as the hearing officer. When there is nothing before the Court which is capable of consideration by the Appeal Authority to determine that there is a claim within the provisions of the subsection, it is difficult to see upon what basis the Court can properly order a referral back to the Appeal Authority. 
16.
The decision of the Appeal Authority, whilst not directing itself to s 80(2)(a), clearly affirmed the view of the hearing officer that the applicant's only rights arose under s 80(1) of the Act. At this time the applicant does not challenge the decision of the Appeal Authority in respect of the claims under that subsection. It was implicit in that finding that the Appeal Authority rejected the claim under s 80(2)(a). 
17.
Whilst, therefore, I have some sympathy for the applicant under this head, the result must be that the applicant has made out no basis upon which special leave to appeal could be granted which would justify a referral back to the Appeal Authority. 
APPLICANT'S SECOND SUBMISSION: S 80(2) (b) 
18.
It was submitted for the applicant that the losses and expenses incurred by him as a result of his injuries flowing from his accident come within the provisions of s 80(2)(b). This submission is made upon the basis that the injury sustained by the applicant in assisting the injured person in the ambulance bay of the hospital gives rise to an entitlement for the expenses and losses incurred by the applicant as a result of such injury in precisely the same way as any other expense or loss which he might have incurred in giving help to the injured person. Thus it is claimed that all such expenses and costs fall within the provisions of s 80(2)(b), even if they do not give rise to recoverable compensation under the provisions of s 80(1) already set out above. 
19.
The essence of the submission is that everything that flowed from the applicant's back injury as a result of his assisting the patient in the ambulance bay is as much a loss within the section as any other identifiable expense or loss, for example, replacement of damaged clothing. This submission is based upon the meaning of the word “incurred” and a distinction which is sought to be drawn with the provisions of s 80(1), which refers to expenses and losses “necessarily and directly resulting” from the injury. 
20.
It is submitted that the word “incurred” has the meaning adopted by the then Chief Justice in King & Anor v Commissioner of Inland Revenue [1974] 2 NZLR 190 and by the Court of Appeal in Commissioner of Inland Revenue v McDonald [1991] 1 NZLR 419. Both Courts referred with approval to the decision of Dixon J in New Zealand Flax Investments Ltd v Federal Commissioner of Taxation (1938) 61 CLR 179, 207: 
‘Incurred’ does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. It is unsafe to attempt exhaustive definitions of a conception intended to have such a various or multifarious application. But it does not include a loss or expenditure which is no more than impending, threatened, or expected. ”
In McDonald's case the Court of Appeal went on to state: 
“That simply recognizes that in ordinary usage ‘to incur’ is to become liable or subject to. ”
(422)
21.
The applicant submits that he has become liable or subject to losses and expenses for which he has not been compensated which arose as the result of him giving help to the injured person. 
22.
For the applicant an extract from the decision of the Court of Appeal in Accident Compensation Corporation v Broadbelt [1990] 3 NZLR 169, 171 was cited: 
“The purposes and scope of the Act are stated in s 26. Subsection (1) is directed to the purposes of the Act. They are to promote safety (subs (1)(a)), to promote the rehabilitation of persons who suffer personal injury by accident (subs (1)(b)), and to make provision for the compensation of persons who suffer personal injury by accident and of certain dependents (subs (1)(c)). [Counsel's emphasis added.] Subsection (2) is directed to the scope of the Act. It speaks in terms of cover under the Act and provides that cover to all persons who suffer personal injury by accident in New Zealand (subs (2)(a)) — and the respondent is covered under this provision — and to certain categories of New Zealanders working overseas who suffer personal injury by accident outside New Zealand (subs (2) (b)). Reflecting that identification of the distinct purposes of the Act Part III then deals with safety and rehabilitation and Parts V and VI with various kinds of compensation. ”
23.
With all respect to the applicant's submissions, the passage emphasised by counsel is supportive also of the case for the respondent, which is simply that this subsection of s 80(2), like s 80(2)(a), is not designed to accommodate the type of claim the applicant is making. It is submitted that s 80(2)(b) is a specific provision to enable those who are not entitled to compensation for injury by accident to obtain compensation in the limited situation dealt with by the subsection. It is submitted for the respondent that it was not the intention of the legislature to create a special class of injured person who, in addition to the benefits which any other claimant might have under the Act, is also entitled to claim under s 80(2)(b) for losses and expenses not compensated under other provisions. The respondent's submission is that if the legislature had intended s 80(2)(b) to have the wide application for which the applicant now contends, there would have been specific reference to personal injury within the subsection and that that does not appear. 
24.
It is submitted for the respondent that the applicant simply did not incur any losses or expenses as a result of assisting the injured person in the ambulance bay but that what the applicant suffered was injury and that the Act provides for compensation for such injury and the applicant has received all compensation to which he is entitled arising out of that injury. 
25.
The Act is, of course, a code — see s 27 — in respect of personal injury by accident. That is not to say that the provisions of s 80 are not to be given a fair, large and liberal interpretation in terms of s 5(j) of the Acts Interpretation Act 1924. Section 80(2) (b) is not, however, addressed to a situation such as the present. The applicant did not suffer any identifiable or reasonable expenses or losses in giving help to the injured person. The expenses and losses which the applicant claims were suffered, if at all, by reason of his injury by way of accident, which is itself the subject-matter of his claim under the Act. To that extent I agree with the decision of the Appeal Authority upon the application to it for leave to appeal that the issue was one of fact. The losses claimed by the applicant are simply not losses which he became liable or subject to as a result of assisting the patient. They are losses, if at all, which he became liable or subject to as a result of the injury which he suffered as a result of assisting the patient. Thus, even if leave to appeal were granted upon the basis that a question of law was involved, I can see no basis for departing from the decision of the Appeal Authority upon its approach to the section. 
26.
It cannot be said that the question involved is one which by reason of its general or public importance should require further consideration. As I have noted, the Act has now been repealed and, whilst there is a saving section in respect of outstanding claims, neither counsel has been able to refer me to any provision within the new Act corresponding to the provisions of s 80(2)(b). Thus this is not a question of law of any general importance at this time. 
27.
Looking at the Act as a whole, it could not be the intention of the legislature that, having provided a code in respect of compensation for personal injury by accident which is applicable to all persons coming under the Act, an exception should be created under the provisions of s 80(2)(b) enabling a person injured whilst assisting another injured person to be in a better position in respect of compensation than any other person who suffers injury by accident. In the absence of any express language supporting such a conclusion, I fail to see how the Court could properly give effect to the submissions for the applicant at the present time. The language and intention of the subsection is clear. The Act makes specific provision under s 80(1) as to the rights of a person who suffers injury by accident in respect of pecuniary losses arising as a result of the accident not related to earnings. There is no basis for considering that such a person also has the extended rights under s 80(2)(b) when the legislature has made specific provision for the pecuniary losses which are to be compensatable as a result of injury by accident under s 80(1). If the applicant had any losses which came within the specific language of s 80(2)(b), then plainly they would be payable by the respondent, but the applicant has not identified any identifiable and reasonable expense or loss incurred by him in giving help to the injured person. All the expenses and losses alleged by the applicant flow from his injury by accident and from no other cause. 
CONCLUSION 
28.
The result is there is no justification for giving special leave to appeal to the applicant and the application is dismissed. 
COSTS 
29.
Having regard to the long-standing history of this matter and the delays which have been no making of the applicant, I think it is appropriate that, having regard to the relatively short hearing in this Court, there be no order as to costs. 

From Accident Compensation Cases

Table of Contents