ABC v Accident Rehabilitation and Compensation Insurance Corporation

Decision 65 / 97 IN THE DISTRICT COURT DCA No. 166/96 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN ABC APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 5 February 1997 Date of Decision: 28 April 1997 E. Jones as counsel for the appellant R.F. Irving as counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE The appeal fails. Introduction: The issue is whether the appellant is entitled to lump sum compensation under s. 147 despite her failure to elect in writing not later than 31 March 1993 to receive her entitlement to lump sum compensation. [P:IMRIE\PETERA.DOC JAB] 2 . To protect the privacy of the appellant, I make an order forbidding the publication of the name, address or occupation of the appellant or of any particulars likely to lead to her identification. On 16 November 1990 the appellant lodged a C1 advice of injury form dated 15 November 1990 in respect of "sexual assault". At that time the appellant was aged 13 years, having been born on 25 September 1977. The form she filed indicated that the abuse had taken place when she was aged eight years and ten years. At the time the form was filed she was undergoing counselling. By letter dated 27 June 1991 the Corporation wrote to her counsellor asking for a progress report and an indication when the appellant would be ready for a final report. By letter dated 16 July 1991 the counsellor advised the Corporation that the appellant had not attended counselling for a long time. Her mother did not help her to keep her appointments, and she had run away to Auckland and had been reported to the police as a missing person. The counsellor said that the appellant felt unsupported and picked on at home, and the counsellor considered that the appellant needed to attend a residential therapeutic community to begin healing the suffering that the appellant had been through. There was no further communication from the appellant and a memorandum dated 3 February 1992 on the Corporation's file indicated that the file would be closed until there was further communication from the appellant. 3. The file was re-opened following a receipt by the Corporation of a letter dated 8 December 1994 from the appellant's counsellor at that time. In particular the letter said that the appellant had made application for lump sum compensation and it gave some details of the sexual abuse of the appellant. The abuse had taken place from the age of five years until approximately nine, and from the age of ten years until thirteen. The abuse was serious and the effects on the appellant were serious. The letter recommended an award of the maximum amount under s.79 of $10,000. The Corporation made some enquiries about an election. That included searches of the files of the appellant's brother and sister. By letter dated 9 January 1995 the Corporation advised the counsellor that as no election had been made the appellant was not entitled to lump sum compensation. By application dated 7 February 1995 the appellant through her counsel applied for a review of the decision advising that the appellant was a minor when the personal injury was suffered and when the election notice should have been sent in and that the Corporation had not sent out an election notice. The appellant's counsellor wrote a letter dated 20 April 1995 supporting the appellant's claim for lump sum compensation. The review was heard on 17 April 1995. The appellant attended the hearing with her sister and her counsel. In evidence the appellant said that she did not learn of the need to make an election until December 1994. The Review Officer issued a written decision dated 27 April 1995. In her decision she referred to the history of the claim and some of the authorities. The officer held that as no election in 4. writing had been made by 31 March 1993 the requirement under s. 147(2) had not been met, and she confirmed the Corporation's decision that the appellant had no entitlement to lump sum compensation. The Appeal: By notice of appeal dated 30 May 1996 the appellant applied for leave to appeal out of time. As I understand it the Corporation does not oppose that application and it is granted. In that application the appellant advised that the appeal involves the interpretation of s. 147 and s. 135(3). The appeal was heard on 5 February 1997. The appellant appeared with her counsel. Ms Jones filed written submissions, Ms Irving filed written submissions, and then counsel made further oral submissions. On the point in issue Ms Jones referred to the decision in ABC v ARCIC (Decision No. 36/95) and submitted that that decision was wrong in law in that:- 1. The Human Rights Act 1993 provides in s.21 that age is a prohibited ground of discrimination, and 2 . The New Zealand Bill of Rights Act, s.27 provides:- 5. "27. Right to Justice - (1) Every person has the right to the observance of the principles of natural justice by any Tribunal or other public authority which has the power to make determination in respect of that person's rights, obligations, o interests protected or recognised by law. (2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any Tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination." (3) New Zealand is a signatory to the United Nations Convention on the Rights of the Child. Under the Convention the appellant is entitled to due regard to her disability at law by reason of her age and condition as an abused child at the relevant times, and the Court of Appeal in Tavita v Minister of Immigration (1994) NZFLR 97 accepted that our statutes should be interpreted in a manner that is consistent with the provisions of the Convention. (4) The Court should find that the appellant, by indicating to the Corporation as soon as it was possible for her to be aware of her entitlements, that she wished to elect to receive lump sum compensation, has complied with the statutory provisions and is entitled to lump sum compensation. In her submissions Ms Irving set out the history of the claim and submitted that in the circumstances, pursuant to s. 147(3), the claimant was deemed to have elected to receive an independence allowance. Ms Irving referred to a number of appeal decisions and submitted that the decision of the Review Officer was correct, and that the appeal should be dismissed. 6. In the discussion Ms Jones submitted that the words "or within twelve months of the claimant attaining the age of twelve years" should be inserted in two places in subsection (1) and once in subsection (2)(b) so that those subsections read as follows (omitting the references to the 1972 Act):- "1. Where any person had an entitlement to compensation under s. 78 or 79 of the Accident Compensation Act 1982 but has not received that compensation and makes written application for that compensation before the 1st day of April 1993 or within twelve months of the claimant attaining the age of 20 years that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or within twelve months of the claimant attaining the age of 20 years or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1992 as continued in force by s. 152 of this Act. (2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1982 applies, and - (a) That person has an entitlement to compensation under section 78 or section 79 of the Accident Compensation Act 1982 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury, and (b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered on the 1st day of July 1992 - that person shall be entitled to elect in writing, not later than the 31st day of March 1993 or within twelve months of the claimant attaining the age of 20 years to receive her entitlement under s. 78 or s.79 of the Accident Compensation Act 1982 or an independence allowance under and subject to the conditions of this Act, but not both." 7. Consideration and Conclusion: I consider that s. 147 does not breach the Human Rights Act or the New Zealand Bill of Rights Act or the United Nations Convention on the Rights of the Child. Section 147 does not discriminate against the appellant by reason of her age. It is a section which preserves in certain circumstances a claimant's entitlement to lump sum compensation. The limits of that preservation are based on dates, not the age of the claimant. In ABC v ARCIC (Decision No. 36/95) dated 23 March 1995 I said (in part):- "On that basis the appellant had applied for lump sum compensation before 1 April 1993 as required by s. 147(1). However, she had not lodged with the Corporation a claim in respect of the personal injury before 1 October 1992 as required by s. 147(2A) or elected in writing not later than 31 March 1993 to receive a lump sum. That means that if the appellant comes within the time limits set out in s. 147 her claim for lump sum fails. The next question is whether the word 'person' in s. 147 includes a person who is not sui generis. In my decision in Tina (DCA 179/94) I had to consider whether s. 63(2) barred a claim by a person under the age of 20 years who had not lodged a claim for cover within twelve months after the date on which the personal injury was suffered. I decided it did not. I held that that subsection had to be read as if the words 'or within twelve months after attaining the age of 20 years' were added to it. The position relating to s. 147 is more complex. It is a section which preserves rights to lump sums if certain conditions are met. It is astonishing for those conditions to deprive an infant of his or her claims because the conditions have not been met as it is 8. astonishing to read s. 63(2) as it was before it was amended as barring an infant from claiming more than twelve months after the date on which the personal injury was suffered. The phrase 'or within twelve months after attaining the age of 20 years' could be read into s. 147(1), (2) and (2A) after the dates 1 April 1993, 31 March 1993 and 1 October 1993 respectively make s. 147 fair for people under the age of 20 years. However, the requirement in s. 147(1) that payment be made on or before 30 June 1995 or after that date if pursuant to a review of appeal under the 1982 Act is not open to the same interpretation. Because of that I conclude that s. 147 cannot be interpreted as preserving the rights of appellant until she reaches the age of 20. The time limits in s. 147 may be a little less astonishing than the time limit in s.63(2) before it was amended because if the time limits in s. 147 are not met then a claimant is still entitled to benefits under the Act even if he or she loses the right to lump sums. Recently the Legislature amended s.63. I have not been able to obtain a copy of the amendment Act yet but I understand that s.3 reads:- '3. Claims - (1) Section 63 of the principal Act is hereby amended by repealing subsection (2) and substituting the following subsections: '(2) Except as provided in subsection (2A) of this section, no claimant shall be entitled to any payment in respect of personal injury unless that claimant lodges a claim for cover within 12 months after the date on which the personal injury is suffered. (2A) A failure to lodge a claim in respect of personal injury within the time specified in subsection (2) of this section shall not be a bar to payment in respect of that personal injury if the Corporation is of the opinion that the Corporation has not been prejudiced in determining cover or payments in respect of that personal injury by the failure to lodge the claim within the time specified.' (2) This section shall be deemed to have come into force on the 1st day of July 1992." The discretion given to the Corporation removes the difficulty caused in some cases by the time limit in s.63(2) but does not assist a claimant who does not comply with the time limits in 9. s. 147. However, as I have already said, a claimant who does not come within s. 147 still has some entitlements to compensation. The result is that the appeal must fail and it is dismissed." The Corporation lodged an appeal against the decision in Tina v ARCIC but Ms Irving has advised that the appeal was withdrawn presumably because of the amendment to s.63. In ABC 5 v ARCIC_(Decision 32/96 2 May 1996) I said in part:- "This is one of many cases where the scheme of the legislation is shown to be flawed because of the lack of discretion given to the Corporation. The Act requires compensation to be paid only to the extent required or permitted by the regulations but in many cases the regulations on first reading do not permit payment of valid claims. The reason for the problem is obvious. It is not possible to foresee and to cover in regulations many of the claims which will arise. The numbers of human experiences leading to personal injury by accident and the injuries arising and the types and circumstances of treatment needed are countless and cannot be foreseen and reduced in advance to writing. That is so no matter how many regulations are made under s. 167. The regulations overlook that. The 1972 and 1982 Acts give the Corporation discretions such as the discretion in s. 149(2) of the 1972 Act relating to the time for making claims. The 1992 Act or regulations made under it should give the Corporation discretions too. Regard should be paid to the part of s. 167(7) which reads:- (7) Without limiting the Acts Interpretation Act 1924, no Order in Council or regulation under this Act shall be invalid because it leaves any matter to the discretion of the Minister or the Corporation or any agent of the Corporation However, High Court judgments have made it clear that the Act should not be read to achieve a desired result. For example, in ARCIC v Walsh 1 BACK 250 the Court said (in part):- 10 "Effectively the District Court held that reg 11 must be read so as to provide for emergencies. The learned District Court Judge said that to avoid absurdity reg 11(1) must be read as if it began with the words such as, 'Except in a case of personal injury that is an emergency ... . For the purpose of this appeal Mr Barnett, who appeared for the Corporation, did not contest that there was no emergency. He, however, argued that the words of the regulation are perfectly clear and that emergency or not, payment was barred unless the prior approval of the Corporation was obtained. He pointed out that the public hospital system provides an accident and emergency service which is available at no charge to persons who need such a service. And, indeed, it seems clear to me that if Mr Walsh's doctor and the Mercy had had a proper appreciation of the provisions of the regulation they should have directed him to that service. It will be seen from what I have just said that I find myself obliged to accept the submission of Mr Barnett for the appellant, as to the interpretation to be placed on the regulation. In my view the words are perfectly clear. This does not seem to me to be a case where it is appropriate to read words into the statute such as was done by the learned District Court Judge. The principles that apply to such a case have been referred to by our Court of Appeal in R v Wall [1983] NZLR 238, 240 and are set out in more detail in two decisions of the House of Lords. In Stock v Frank Jones (Tipton Ltd [1978] 1 WLR 231; [1978] 1 All ER 948 Lord Scarman said at p 239; p 955: 'If the words used by Parliament are plain, there is no room for the 'anomalies' test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake. If words 'have been inadvertently used,' it is legitimate for the court to substitute what is apt to avoid the intention of the legislature being defeated: per Mackinnon LJ in Sutherland Publishing Co Ltd v Caxton Publishing Co Lid [1978] Ch 174, 201. This is an acceptable exception to the general rule that plain language excludesa consideration of anomalies, ie mischievous or absurd consequences. If a study of the statute as a whole leads inexorably to the conclusion that Parliament has erred in its choice of words, eg used 'and' when 'or' was clearly intended, the courts can, and must, eliminate the error by interpretation. But mere 'manifest absurdity' is not enough: it must be an error (of commission or omission) which in its context defeats the intention of the Act.' 11 In Jones v Wrotham Park Settled Estates Lid [1980] Ac 74, in considering the circumstances which may justify reading words into a provision, Lord Diplock at p 105 said in reference to an earlier decision where words had been read in that: 'First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the craftsman and Parliament had by inadvertente overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the craftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.' As indicated above, I am satisfied that this is not an appropriate case for reading words into the statute. The tests are not met. Furthermore, there is no ambiguity. The conclusion I have come to is in accordance with other decisions of the Accident Compensation Appeal Authority, the District Court, and the High Court. I refer to: Thompson v ACC ACA 67/93; Wellwood v ARCIC (1994) 1 BACK 18; Tree v ARCIC ACA 173/95; Dravitski v ARCIC (1994) 1 BACR 12. Accordingly, the appeal is allowed." Having regard to the fact that although s. 147 does not preserve this appellant's entitlement to lump sum compensation she has other entitlements under the Act I cannot say this is an appropriate case for reading into the Act the inserts proposed by Ms Jones. 12. Accordingly the appeal fails. (J.W. Imrie) District Court Judge (This decision is given under s. 25A of the Acts Interpretation Act.)