AB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No.4/96 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 66 / 93 /0047. BETWEEN A B Appellant (Appeal No. DCA 148/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent NAME OF APPELLANT NOT TO BE PUBLISHED DECISION OF JUDGE D A ONGLEY By consent of the parties this appeal was determined on the papers. The appellant suffered sexual abuse twice, first during a period of about eight months at the age of about five in 1974 and then again during a period from 1986 to 1989. She saw her general practitioner on 19 July 1992 and had an M46 claim form prepared. She furnished sufficient information for the claim form to be filled out by the doctor and when he asked when the abuse occurred she told him that it had occurred a lot over more than one period of time. He said that he needed a date to complete the form and the appellant pointed out that if she was to state every date on which it occurred he would have to fill in the whole pad of claim forms. Instead of completing two separate claim forms for the two separate periods of abuse, the doctor told her he only needed one date and she selected 30 June 1986. She said in her affidavit in support of her appeal that she selected that date rather arbitrarily because she remembered one particular bad incident of sexual abuse at that time, and she assumed that the claim form would cover the abuse both before and after that date. There was nothing on the claim form to indicate that there were two separate periods of abuse capable of comprising two separate claims for compensation. Time for filing claims under the 1972 and 1982 Accident Compensation Acts was running out because the Accident Compensation Act 1982 had been repealed and the transitional provisions - 2- of the Accident Rehabilitation and Compensation Insurance Act 1992 allowed only a further three months for lodging claims for those forms of compensation available under the former Acts but discontinued under the 1992 Act. Lump sum claims available under the former Acts were not continued under the 1992 and the appellant would have had to lodge a claim by 1 October 1992 in order to qualify for lump sum claims. Her claim form of 29 July 1992 was lodged in time but it was treated at face value as a single claim. The respondent maintains that it could not have known about the 1974 abuse until March 1993 when it received reports from a counsellor who had discussed details of the abuse with the appellant. The appellant appealed against the respondent's refusal to treat the claim as one for two separate events of personal injury and she was asked to lodge a separate claim for the 1974 abuse which she then did. The substance of the review and this appeal concerns the refusal of the Corporation to treat the first claim as one covering two separate periods of sexual abuse. The Review Officer found that the first claim was not sufficiently suggestive of a separate claim for injury as early as 1974 and resolved the question in favour of the Corporation. I have to agree with the Review Officer's conclusion. It is not a case where the claim form can be read in such a way as to cover more than one period of abuse and there is no real question about that. The thrust of the appellant's argument is that she disclosed to her doctor that she had suffered multiple periods of abuse and she informed the counsellor appointed by the respondent. In summary, she says that the form in which the claim was submitted was not decided by her, but by her doctor, and also by the Corporation by virtue of the design of its claim forms and the lack of guidance provided for claimants in the situation of the appellant. She says also that the delay in discussing her claim with a counsellor was the responsibility of the Corporation and that the problem would have been rectified if she had been afforded an earlier opportunity of communication with a counsellor or other person experienced in the technical aspects of formulating multiple claims. Those matters are not in dispute and they contain elements of injustice to the appellant. Of course the underlying difficulty which she faced was the revocation of the 1982 Act which contained provision for lump sum compensation. Her claim was already late, but her opportunity of succeeding was defeated by the expiry of time for lump sum claims on 1 October 1992. The Act does not permit the Review Officer or the Court to take account of the questions of injustice to which the appellant has referred. Regrettably the Act contains no discretion to allow late claims of this nature. The reasons have now been stated in a number of appeal decisions, and the particular kind of problem that arises in this case was decided in a similar way by Judge Kerr in the case of G v ARCIC [1994] NZAR 353. The appeal is dismissed. DATED at WELLINGTON this day of MARCH 1996 D A Ongley District Court Judge