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Accident Compensation Cases

Crowe v Accident Compensation Corporation (HC, 22/07/93)

Judgment Text

JUDGMENT OF TOMPKINS J 
TOMPKINS J
The appeal 
The appellant has appealed, pursuant to leave granted by the Accident Compensation Appeal Authority on 15 May 1990, against the decision of the Appeal Authority delivered on 21 August 1989. The appeal is on a question of law pursuant to s 111 of the Accident Compensation Act 1982 (“the Act”). The Act has since been repealed and replaced by the Accident Rehabilitation & Compensation Insurance Act 1992, but it is the provisions of the Act that govern this appeal. 
Background 
The appellant suffered personal injury by accident on 7 November 1987. It resulted in a back injury involving spinal cord damage. He now suffers partial paralysis, and can mobilise only with the aid of crutches. 
For some 20 years the appellant had lived with his wife and family in a house, formerly a hospital, with land of over a quarter of a hectare. The surroundings were all in lawn and garden. 
In addition to other claims for compensation under the Act, the appellant sought from the respondent payments to compensate him for the cost of maintaining the large section and garden. In support of the claim, the respondent submitted prices for lawn mowing and other expenses. On 11 August 1988 the respondent advised the appellant that it would reimburse a contribution of $10.00 per week for section maintenance, subject to receipts being lodged for work done. 
On 7 September 1988 the appellant lodged an application for review. The application stated that it was in respect of a decision for section maintenance assistance at $10.00 per week. The reason for the review was stated to be — 
“For two reasonable quotes for lawn mowing expenses of three hours work per time at $56.10 per time. We view $10.00 per time as neither fair nor reasonable. ”
The review came before Mr B H Martin, review officer, on 1 November 1988. Evidence in support of the application was given by the appellant. The review officer in his decision considered the terms of s 80 of the Act, and the decision of the Court of Appeal in ACC v Nelson.1
| X |Footnote: 1
[1979] NZLR 464 
He concluded that he could find no grounds for interfering with the Corporation's decision. Indeed, he considered that the appellant had been treated liberally. 
The appellant also made a claim for a lump sum for assistance in the cost of cleaning up the grounds surrounding his house following his return from hospital. The appellant claimed $300.00, being the amount which he had paid to his son for undertaking this work. The Corporation declined that claim. The appellant sought a review of that decision. That review came before Mr F L Curtin, review officer, on 23 August 1988. He decided that the Corporation should pay 50% of the amount paid by the appellant to his son. 
The appeal to the Appeal Authority 
The appellant appealed to the Appeal Authority against both these determinations by the two review officers. The appeal was heard on 13 July 1989. In its decision, issued on 21 August 1989, the Appeal Authority dismissed both parts of the appeal. 
In connection with the claim for the cost of maintenance of the grounds the appellant — who appeared in person before the Appeal Authority — submitted that the Corporation should have considered his claim not only under s 80(1) of the Act, but also under s 80(2)(a). The Appeal Authority held that he had no jurisdiction to consider the claim under s 80(2)(a). He went on to set out in his decisions the reasons why he considered that the claims under s 80(1) should be dismissed. 
The appeal to the High Court 
The notice of appeal to this court sets out the respects in which the appellant alleges the decision of the Appeal Authority was erroneous. These respects are directed particularly at the decision of the Appeal Authority that it had no jurisdiction to entertain an application under s 80(2)(a), although there is also reference to the claim under s 80(1). The notice states the question of law that this court is asked to resolve to be whether the Appeal Authority had jurisdiction to consider a claim under s 80(2)(a) of the Act. 
Section 80 
This section deals with compensation for pecuniary loss not related to earnings. Sub-section 1 provides that where a person suffers personal injury, or dies as a result of personal injury — 
“ … 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 for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury or death, not being — 
(a) …  ”
There follows a list of expenses or losses that are not within the subsection. 
The subsection therefore deals with pecuniary loss incurred by the person who has suffered the accident. The payments under that subsection are to that person, or in the event of his death, to his administrator. 
Subsection 2 is directed to pecuniary loss suffered by a person other than the person who suffered the accident. It provides that where the person suffers personal injury by accident or dies — 
“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 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 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. ’”
This subsection then provides for payment of pecuniary loss to a member of a household of which the injured or deceased person was a member. In Accident Compensation Commission v Kivi2
| X |Footnote: 2
[1980] 2 NZLR 385 
the Court of Appeal considered the jurisdictional requirement that must be established under s 121(2)(a), the section in the 1972 Act that is similar, but not identical, to s 80(2)(a). That was a case of fatal injury. Adapting those requirements to a case of personal injury, and allowing for the changes in the paragraph compared to its predecessor in the 1972 Act, a would be claimant must establish in the case of personal injury by accident: 
(1)
That a person has suffered personal injury, who was at the time a fellow member of the same household as the claimant. 
(2)
That the claimant has suffered a quantifiable loss of service of a domestic or a household nature. 
(3)
That that service was previously provided on a regular basis. 
(4)
That the quantifiable loss was suffered by the person to whom the payment is made as a result of the injury. 
(5)
That the services must have been of a kind which, but for the injury, the claimant could reasonably have expected to receive over a period. 
(6)
That the services lost through the injury must have been of a nature which would have been in some way linked with the circumstances of common membership of the same household. 
It is apparent that these two subsections relate to distinct and separate claims. Subsection (1) deals with pecuniary losses by the person who suffers personal injury or who dies. Subsection (2) deals with pecuniary loss suffered by a member of the household of which the injured or deceased person was a member. In McNeilly v Accident Compensation Corporation3
| X |Footnote: 3
(Decision number 222/91, 3 July 1991) 
Mr P J Cartwright as Appeal Authority observed that the injured person himself or herself is not excluded from membership of the household in terms of eligibility to make a claim under s 80(2)(a). I do not consider that that can be correct. The clear purpose of the subsection in the context of the whole of s 80 is to provide payments to a member of the household other than the injured or deceased person. In providing for payment for a loss of service previously provided, proved to have been suffered by the person to whom the payment is made, the paragraph must be referring to a person other than the person injured or deceased, being the person who was providing the service for which the payment is now to be made. 
The jurisdiction to consider s 80(2)(a) 
It is clear, both from the application for review that the appellant completed, and from the other material that had been submitted in support of that application, that it was the appellant who was applying to the Corporation for loss that he had suffered as the result of his injury, and more specifically for the compensation for the costs he was going to incur in the maintenance of his property. The decision of the Corporation related to that claim, which could only have been a claim under s 80(1). 
At the hearing before Mr Martin on 1 November 1988 the appellant in his evidence said he wrote to the respondent and asked about a s 80(2)(a) claim. But there does not appear to have been any further reference to it, nor was there any application to amend the claim to one under that subsection. The Review Authority in his decision does not refer expressly to s 80(1). But it is clear from the decision that it relates only to a claim by the appellant for a contribution to the cost of maintenance of the grounds. 
The Appeal Authority in his decision states that although he was satisfied that at the review the appellant was presenting his case in reliance on s 80(1) and the review officer dealt with it under that subsection, it became apparent at the hearing of the appeal that the appellant was conducting it on the basis that the Corporation should have considered his claim under s 80(2)(a). It was for this reason that he went on to say that he had no jurisdiction to consider a claim under s 80(2)(a) because his jurisdiction was limited to review decisions actually made by virtue of s 107 of the Act. 
In that respect, the Appeal Authority was correct. It is the Corporation that is charged with the responsibility of making the initial decision of the compensation, if any, to be paid to a member of the household under s 80(2)(a). A person dissatisfied with that decision may apply for a review under s 101. The review officer gives a decision to which the Corporation is required to give effect4
| X |Footnote: 4
s 102(9) & (11) 
. S 107 provides that an appeal shall lie to the Appeal Authority against any decision of a review officer on an application for review under s 101. The Appeal Authority may confirm, modify or reverse the decision appealed against, or may refer the whole or part of the matter to the Corporation for further consideration5
| X |Footnote: 5
s 109(7) & (8) 
. It is apparent from this statutory framework that the Appeal Authority has no jurisdiction to grant compensation to a claimant where there has not been a decision made by the Corporation on such a claim and a determination by a review officer in respect of that decision. 
This approach accords with the decision of Smellie J in Accident Compensation Corporation v Lukes.6
| X |Footnote: 6
[1992] NZAR 419 
The respondent had claimed earnings related compensation on the basis of personal injury by accident. The claim was declined. The decision of the review officer was that the Corporation's decision was correct. On appeal to the Appeal Authority, it found that the respondent's incapacity was due to an occupational disease. Smellie J held that the Appeal Authority had no jurisdiction to make such a decision. At 424 he said that the jurisdiction of the Corporation to reach a decision is not to be circumvented by the Appeal Authority finding a category of personal injury which was not put before the Corporation or addressed by it. Further, such a finding is not a reversal or modification of the review officer's decision, but the substitution of a completely new conclusion. He considered that the Appeal Authority should have exercised its jurisdiction under s 109(8) to refer the whole matter back to the Corporation for reconsideration. 
It is for these reasons that I am satisfied that the Appeal Authority was correct in deciding that he had no jurisdiction to consider a claim by a member of the appellant's household — in this case his wife — for a payment under s 80(1)(a). I have considered whether I should, pursuant to s 111(5), modify the decision of the Appeal Authority by directing him to refer the matter back to the Corporation for further consideration. Mr Lucie-Smith, in the course of his submissions, questioned whether the court had jurisdiction to make such an order. He pointed out that whereas the Act expressly gives the Appeal Authority power to refer the matter back to the Corporation in s 109(8), no similar power is expressly given to this court by s 111. But subs (6) of s 111 provides that subject to the provisions of the section, the procedure in respect of any appeal shall be in accordance with the rules of the court. Rule 718A of the High Court Rules provides in sub-para (2) that the court may remit the matter to which the appeal relates to the tribunal or person whose decision is appealed from for further consideration, and can give the tribunal or person directions. Thus, this court would have power to remit the matter back to the Appeal Authority and give the Appeal Authority a direction that it should remit the matter back to the Corporation. 
But I do not consider that course is necessary in the present case. If a member of the appellant's household, such as his wife, considers she has a claim under s 80(2)(a) she can make it to the Corporation in the normal way. That claim would not be barred by the limitation provision in s 98 because a claim in writing in respect of the relevant injury was received by the Corporation within 12 months after the date of the accident causing the injury. 
Mr Lucie-Smith submitted that I should not adopt this course because, on his analysis of the evidence and material available, a claim by Mrs Crowe could not succeed. But for the same reasons that it was not for the Appeal Authority to decide whether a claim under s 80(2)(a) should be allowed, it is not for this court to make such a decision. That must initially be the decision of the Corporation 
The exercise of the discretion under s 80(1) 
Mr Recordon submitted that the Corporation, in fixing the amount of the appellant's loss under s 80(1) at $10.00 a week (the amount allowed was increased to $23.00 earlier this year), exercised its discretion on a wrong basis. He submitted that while the Corporation could take into account all the circumstances in deciding how much a payment under the subsection should be, it was bound to have regard to the actual loss suffered and was not entitled to make an arbitrary assessment. 
The appellant now claims that his loss was $472.50 a week, being a figure arrived at based on 20 hours a week at rates quoted by contractors. 
This was not a ground stated in the notice of appeal. No question of law arising out of the exercise of the discretion has been framed. In submissions prepared by the appellant in person, the question was asked whether or not the Appeal Authority was wrong in law in determining that the Corporation had correctly exercised its statutory discretion under s 80 of the Act in upholding a contribution of $10.00 a week in view of a total of $472.50 a week being quantified for loss of services before the Appeal Authority. But a decision by the Appeal Authority that the Corporation had correctly exercised its statutory discretion does not itself give rise to a question of law. 
However, the Appeal Authority in his decision did refer to matters relating to the exercise of the discretion. In doing so, he adopted the approach of the Court of Appeal in Accident Compensation Corporation v Nelson.7
| X |Footnote: 7
[1979] 2 NZLR 464 
He considered whether the cost of maintaining the section were costs directly resulting from the accident. He also had regard, in accordance with the provisions of the subsection, to the other compensation paid and payable. The appellant had received earnings related compensation since the date of the accident, currently at $811.54 a week. He had also received the maximum sums payable under ss 78 & 79 of $27,000. Other amounts he had received from the Corporation brought the total payments he has received to date to $267,720. As the Appeal Authority observed, it is apparent that substantial financial support has been given, and doubtless will continue to be given to Mr Crowe. The Appeal Authority considered that these were all matters to which the Corporation was entitled to have regard in exercising its discretion under s 80(1). I do not find any basis upon which it could be concluded that the Appeal Authority's approach to the exercise of the discretion by the corporation was wrong in law. 
Conclusion 
For the reasons I have expressed, the appeal is dismissed. Since the appellant was initially on legal aid, and having regard to his circumstances generally, I make no order as to costs. 


[1979] NZLR 464 
[1980] 2 NZLR 385 
(Decision number 222/91, 3 July 1991) 
s 102(9) & (11) 
s 109(7) & (8) 
[1992] NZAR 419 
[1979] 2 NZLR 464 

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