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Accident Compensation Cases

Campbell v Accident Compensation Corporation (HC, 04/07/03)

Judgment Text

Hammond J
I have before me an application under s 166 of the Accident Insurance Act 1998 for leave to appeal to the Court of Appeal from a judgment delivered by me on 25 March 2003. That judgment is reported as Campbell v Accident Compensation Corporation [2003] 3 NZLR 403
It is sufficient for present purposes to set out the headnote to that case, as reported: 
“The first claimant suffered cerebral palsy and epilepsy from medical misadventure at birth in 1985 and received accident compensation after a claim was lodged in 1996. The second claimant was brain damaged at birth in 1989 and received accident compensation after a claim was lodged in 1994. The claimant's claims for attendant care backdated to their births were rejected by the Accident Compensation Corporation on the basis that they were not receiving or were not entitled to receive such compensation before 1 July 1992. Under s 149 of the Accident Rehabilitation and Compensation Insurance Act 1992 (as amended), payments under s 80 of the Accident Compensation act 1982 (including attendant care) continued to apply until 30 June 1993 to persons receiving or entitled to receive such compensation. On appeal, the claimants argued that they were entitled to receive such compensation but the Judge accepted the Accident Compensation Corporation's (ACC) argument that they were not so entitled because they had not made a written claim as a condition precedent to cover. The appellants appealed to the High Court. 
Section 149 of the Accident Rehabilitation and Compensation Insurance Act 1992 did not create an inchoate right to cover. Section 149 was a transitional not a saving provision; the transition from the 1982 Act to the insurance-like scheme of the 1994 Act generated the context of a period of adjustment to a narrower range of entitlements; s 149 created a temporal limitation on an ‘entitlement’, to one at a specific time immediately before 1 July 1992; and the words ‘entitled to receive’ in s 149 implied an immediate entitlement as of 1 July 1992. The appellants were not ‘entitled to receive’ compensation under s 80 immediately before 1 July 1992 because no claim in writing had been made (as required by ss 96 and 97), any claim was outside the limitation period of 12 months after the date of accident (s 98) and potentially might not pass the test for extension of time (s 98(2)) and the ACC had not made or issued a decision or exercised a discretion under s 80 (see paras [25], [26], [27], [28], [29], [32], [33]), ”
The Grounds for Appeal Under s 166 
The events covered by the two (related) claims which were before me on the appeal to this court were of a harrowing kind. They concerned severely brain damaged children (from birth) who were cared for by long suffering and devoted parents, but who found themselves (in my view) outside the terms of the relevant legislation. It would be inhuman not to feel great sympathy for the applicants. 
Nevertheless, there is only a restricted right of further appeal which is provided for by s 166 of the Insurance Act 1998, in these terms: 
Appeal to Court of Appeal on question of law 
A party to an appeal before the High Court under section 165 who is dissatisfied with any determination or decision of the court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only. 
If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal. 
An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court. 
The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final. ”
As to the basis on which a Court ought to proceed under this provision, Mr McBride referred me to Wardle v Accident Rehabilitation Compensation & Insurance Corporation (AP 134/02, 24 February 2003, Gendall J). His Honour there took the view that the application in that instance (I assume likewise under s 166 the judgment does not say so) falls within the principles stated in Waller v Hider [1998] 1 NZLR 412 (CA) and reaffirmed in Snee v Snee [2000] NZFLR 120 (CA). 
The applications in those two cases were under s 67 of the Judicature Act 1908. The Court of Appeal held that for leave to be granted under that provision, an appeal must raise some question of law or fact capable of bone fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and to the parties, and the delay inherent in the further appeal. The primary function of a Court on a second appeal is to clarify the law and to determine whether it has been properly construed and applied by the court below. 
Whilst not taking issue with what has just been stated, Mr Miller drew my attention to Harrild v Director of Proceedings (Full Court, 25 June 2003, CA 92/02) in support of a submission that a “generous unniggardly approach” is appropriate when interpreting the Accident Compensation legislation. In particular, he referred to the observations of Keith J at paragraph 39 of that judgment, and Elias CJ at paragraph 19. 
I add only these observations. First, s 166 uses the expression that an applicant who is “dissatisfied” with the decision in the High Court may appeal (by way of case stated) to the Court of Appeal. I expect that most litigants who do not succeed are “dissatisfied”, but I do not think that phrase contemplates an appeal as of right. Indeed, such a possibility is entirely precluded in my view by the fact that the “leave” of the High Court is still required. 
Secondly, it is difficult to see how the principles for granting or withholding leave could differ much, if at all, in principle from those stated in Snee v Snee
Thirdly, it is difficult to see how a “generous unniggardly” approach can be taken to questions of jurisdiction - save in the specific area with which the Court of Appeal was dealing (namely the definition of “personal injury”
Fourthly, where the spirit of the legislation might come into play on a leave application is that, to the extent the court is exercising a discretion whether to grant leave in a doubtful or marginal case, the leave court would in my view be justified in granting leave rather than leaving (often severely injured) persons entirely beyond the scope of cover, and with no ability to resort to a common law action. But jurisdiction is jurisdiction, and even with the greatest goodwill in the world it cannot be extended beyond its proper bounds. 
The Arguments for the Applicant 
Mr Miller argued that there is a question of law involved which ought properly to be advanced to the Court of Appeal. 
Secondly, he argued that at a pragmatic level these two appellants are not the only claimants to have been affected in this way. In an appendix to his submissions, he detailed six cases which he said might well be affected by the outcome of the two cases presently being considered. For instance, in the first of those cases (Dorizac v ACC (ACA 8/01)) he suggested that the Appeal Authority has rejected an appeal and the appellant is now seeking leave to appeal to the High Court, but that hearing has been adjourned awaiting an outcome of the Campbell/Handley litigation. Dorizac appears, on Mr Miller's view, to be the other instance most closely affected by this litigation. 
The Arguments for the Corporation 
Mr McBride argued that: 
Whilst there is a question of law involved in this instance, there is no sufficient reason for the grant of leave to appeal in the two cases which have been before me. 
There is no sufficient bone fide or serious argument warranting the costs and delays of a further appeal by leave. 
The issues arising are entirely historical, and have been overtaken by several layers of legislative change. 
The interests of justice do not favour the grant of leave. ”
By way of reply to Mr Miller's argument, and the possible implications of Campbell and Handley in this area of the law, Mr McBride also argued strongly that none of the six other decisions presently in progress through the hearing system are, or will be, affected by any reversal of Handley and Campbell. 
It is common ground that there are issues of law which were before this court. At paragraph 15 of my decision I put the matters at issue as shortly as I could, in this way: 
“The question before this Court is a very narrow one: whether there was an entitlement under the 1982 Act which as it were, ‘carried forward’ and which could then be addressed under the 1992 Act, even though (as is common ground) no claim of a formal character was ever lodged under the 1982 Act …  ”
It has not been possible for me on a leave application (and in any event I think it would be inappropriate) to review the six other decisions which are still apparently in the course of being determined in one way or another. Quite apart from anything else, anything that fell from this court might inappropriately be taken as influencing decisions in train in the appeal authority, or lower courts. 
However what I think is significant, is that in my own decision I felt obliged to say (para 25): 
“[This case] is of some distinct practical consequence because if Mr Miller is right then there must be a class of claimants ‘out there’ who might not yet have come forward and whose rights, despite the provisions of the 1992 Act, have not been abridged. ”
I put it to Mr McBride in the course of argument today that, even leaving aside the six cases to which Mr Miller has referred, it cannot be taken for granted that there might not still be “out there” as I termed it, other claimants who would say that, if Mr Miller's argument is correct they too would then come within the legislation. Indeed, the Corporation might feel obliged within the spirit of the legislation (as it has done on other occasions) to advertise to enable any such other claimants to come forward. 
In short, it simply cannot be ruled out that there may not be other potential claimants who could take advantage of Mr Miller's argument, if it is correct. There is therefore, in my view, a sound practical reason for seeing that this issue is laid to rest once and for all by what (in this instance) would be the final court of appeal. 
I therefore grant leave under s 166 for an appeal by way of case stated to the Court of Appeal. 
Directions were sought by Mr Miller as to the preparation of the case on appeal. He did not advance anything specific. I think the standard directions are sufficient. Mr Miller is to have the carriage of the preparation of a case on appeal; he is to serve a copy on the Corporation; counsel are then to confer and when the case on appeal has been settled between them, it is to be submitted to this court for approval and endorsement before it is lodged with the Court of Appeal. If there should be a disagreement between counsel as to the precise terms of the case to be stated, leave is reserved to counsel to confer with me in chambers, in the usual way. 
Costs are reserved on this application. If counsel wish to make submissions they can do so by memoranda, in the usual way. 
Judgment accordingly. 

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