Tina v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 28 / 95 AT WELLINGTON DCA No. 179/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 58/94 2283. IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN A.H. TINA APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Rotorua on: 1 December 1994 Date of Decision: 9 March 1995 Mrs H. Tina, the appellant's mother, for the appellant P.J. Zumbach as Counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE I have decided to revoke the decision of the Corporation and allow the appeal. 2. Introduction: The issue in this appeal is whether the claim of the appellant is barred by s. 63 (2) of the Act. The appellant was born on 28 June 1976. When he was eleven years old in December 1988 he damaged tooth 21 while playing. He was treated by a dentist under the School Dental Benefits Scheme and no claim was made on the respondent for the cost of treatment. The tooth was loosened in August or September 1993 when the appellant was eating corn. He sought dental treatment and a claim was lodged with the Corporation in September 1993. By letter dated 14 January 1993 the Corporation advised that it declined the claim under s.63(2) of the Act. A review hearing was held before a Review Officer on 12 July 1994. The Review Officer issued his decision on 18 July 1994. He confirmed the Corporation's original decision. At the hearing of the appeal on 1 December 1994 the appellant was represented by his mother, Mrs Tina. The appellant is at present attending school in Australia. Mrs Tina presented a note covering the following points: - 1. The appellant claims cover under the Act for any treatment that he may require in the future for the tooth that was damaged in December 1988. 3. 2. He should not have to pay for the fact that the dentist failed to notify the Corporation at the time of the treatment. 3. Since the accident in 1988 the appellant has had to be careful that he does not dislodge the cap on the injured tooth. For the Corporation Ms Zumbach presented written submissions. In her submissions she dealt with s.63 and s. 135 of the Act. She referred to the decisions in Smith (1/94) and Hill (13/93). She said that those decisions were incorrect and that they are under appeal. In verbal submissions Ms Zumbach referred me to s. 10(2) relating to damage to teeth when being used naturally. I raised with her the meaning of "claimant" in s.63 and by consent leave was granted to her to file and serve within fourteen days further submissions on that point. Mrs Tina was allowed seven days from the receipt of those submissions to file and serve a reply. Ms Zumbach filed her submissions on 13 December 1994. I have not received any further submissions from Mrs Tina. Ms Zumbach submitted:- "It was put to the Respondent that section 63(2) of the Accident Rehabilitation and Compensation Insurance Act 1992 (ARCI Act) should not apply to people who suffer injuries as children because, in terms of the Limitations Act 1950, they are under a 'disability' and, therefore, the time for lodging of claims should be extended in terms of section 24 of the Limitation Act. Further, it appears unduly harsh for section 63(2) to deny entitlement to people who had injuries as 4. children and, therefore, had no control over whether a claim was lodged at that time. Section 63(2) of the ARCI Act states:- 'No claimant shall be entitled to any payment in respect of personal injury unless that claimant has lodged a claim for cover within 12 months after the date on which the personal injury is suffered.' Section 24 of the Limitation Act 1950 provides as follows: If, on the date when any right of action accrued from which a period of limitation is prescribed by or may be prescribed under this Act the person to whom it accrued was under a disability; - (a) In the case of any action ... in respect of the death or bodily injury to any person, or of any action to recover a penalty or forfeiture or sum by way thereof by virtue of any enactment where the action is brought by an aggrieved party, the right of action shall be deemed to have accrued on the date when the person ceased to be under a disability or died, whichever event first occurred; or notwithstanding that, in any case to which either of the foregoing paragraphs of this section applies, the period of limitations has expired: Provided that - (c) This section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims; ... 5. Section 2(2) of the Limitation Act provides: 'For the purposes of this Act, a person shall be deemed to be under a disability while he is an infant or of unsound mind.' In terms of the Age of Majority Act 1970 an infant in New Zealand is a person up to the age of 20 years (ss 4(1) and 5). In van Stipriaan (District Court, Auckland, DCA 71/93, 22 September 1994) section 28 of the Limitation Act (Postponement of limitation period in case of fraud or mistake) was put forward in support of the Appellant's submission that where there was fraud or mistake the Limitation Act applied and section 63(2), therefore, had no application. In that case Judge Kerr said as follows: '...It is not a question of the van Stipriaan estate, instituting an action (or the modern word proceeding) against the Corporation. The estate makes a claim pursuant to statute. Accordingly, the ability to extend limitation for fraud or mistake, having been incorporated in statute, I do not consider, the common law position or indeed equity, can assist. Extension of time for fraud or mistake with a statutory provision having been implemented is limited to what the statute contains. The other matter too, which would suggest that what is contained in paragraph 916 [Halsburys] is confined to statute is the reliance in that paragraph of the words 'cause of action'. I do not think the van Stipriaan estate has a cause of action. Rather, it either has a right to claim compensation pursuant to statute, or it does not. That right does not seem to me, to be included in the term cause of action, as that term is ordinarily understood'. It is submitted that the same principles apply in respect of claims for an extension of the limitation period in respect of disability in terms of section 24 of the Limitation Act as were applied by Judge Kerr in van Stipriaan in respect of section 28 6. of that Act for fraud and mistake. The Appellant makes a claim pursuant to statute. Section 63(2) provides for its own limitation period. Accordingly, the common law position or indeed equity cannot assist. Accordingly, van Stripriaan is authority for the proposition that the extension or postponement of limitation periods as provided for in the Limitation Act has no application to claims under the ARCI Act. Further, section 24 of the Limitation Act refers to 'any right of action accrued'. Section 4 of the Limitation Act sets out categories of 'actions' the Act applies to: '(a) Actions founded on simple contract or tort; (b) Actions to enforce a recognisance: (c) Actions to enforce an award, where the submission is not by deed: (d) Actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.' It is submitted that subsection (d) has no application to the present case on the ground that this is not an 'action to recover any sum recoverable by virtue of any enactment'. The issue is entitlement under the ARCI Act, not 'recoverability'. It is submitted that the only action the present claim could come under is tort. Applying commonly accepted tort principles, in the present context it cannot be said that, but for the failure of the Respondent to meet a certain standard of care owed to this Appellant, this Appellant would not have suffered personal "injury by accident. In other words, it is submitted that no right of action against the Corporation has accrued. Accordingly, the Limitations Act has no application to the present case and the statutory provisions in the ARCI Act must be applied. In the alternative it is submitted that in terms of section 24 of the Limitation Act the Appellant's right of action is deemed to 7. have accrued on the date when he ceased to be under a disability; that is, the day he turns 20. It would appear from the Respondent's records that the Appellant is 18 years old. Accordingly, his right of action has not yet accrued. Presumably, however, the right of action subsists with his guardians and/or representatives. Further, the proviso in subsection (c) would appear to apply in that the section does not effect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims. It is accepted that 1988 was that date of the injury and that the Appellant had a disability at that time in that he was an infant. The Respondent has always accepted claims lodged by guardian and/or representatives on behalf of children or people of 'unsound mind'. Accordingly, the right of action first accrued to the Appellant's guardians. The concern has also been raised that the ARCI Act does not have a definition of 'claimant'. It has been suggested that there may be the unusual situation where a child or someone of unsound mind had absolutely no representative who would lodge a claim on his or her behalf. It would appear to be harsh to apply section 63(2) in such a case. First, it is submitted that this would indeed be an unusual situation in New Zealand. There are numerous mental health Acts in New Zealand which set out to protect the interests of people of 'unsound mind'. Moreover, the Status of Children Act 1969 contains a 'presumption as to parenthood' such that any child born in New Zealand is presumed to be the child of its mother and her husband, or former husband, as the case may be (section 5). The Guardianship Act sets down in statutory form the duties of guardians. These duties are enforceable in law by a Family Court judge. Second, the Respondent's policy has always been that child claimants are accepted to be represented by their guardians and/or representatives. Claims for children, signed by a parent, have always been accepted by the Respondent. The 8. Respondent similarly recognises claims submitted by a representative and/or guardian of someone of unsound mind. It is further submitted that this Appellant does not come within the hypothetical class of children with no guardian and/or representative looking out for their interests. The claim form records that on the day of the injury the Appellant was taken to the dentist by his mother. The Appellant did not appear at the District Court hearing on 1 December 1994. He was 'represented by his mother'. Mrs Tina impressed on the Court that she felt very responsible for her son and it was clear that at all times she has endeavoured to act in his best interests. In the circumstances, it is unlikely that the Appellant would have been able to do any better than his mother if he had been an adult and responsible for lodging the claim in 1988. Accordingly, the facts of this case do not make out case for an exception to be made to the application of section 63(2)." Consideration and Decision: I have considered delaying this decision until the High Court has dealt with the appeals in Smith and Hill but the Registrar of the District Court has advised that no date has been set for the hearing of those appeals yet. Accordingly, I will give my decision and if need be it can be taken on appeal too. I consider that the word "claimant" in s.63 must be taken to mean a person who is sui generis. In the Hill decision the Judge referred to the fact that there was no provision in the 1972, 1982 and 1992 Acts to deal with somebody who at the time of an accident was under a disability. He said:- 9. 'This is to be contrasted with the Limitation Act 1950 which required an action in respect of bodily injury to be brought within a period of two years from the date when the cause of action accrued although there was a provision to apply to the Court for leave to bring the action within six years from the date on which the cause of action arose (see s.4(7)). Section 24 of the Act deals with a person suffering from a disability (which term included a person under the age of 20 years). The section provided that time did not commence to run until a person ceased to be under a disability." Later in his decision the Judge said:- "One of the things that concerns me about the 1992 Act, is that in present day society with numerous dysfunctional families; with domestic violence occurring to children; with sexual molestation of children; and with many children in families where a parent or parents have an inadequate or restricted knowledge of English, and probably as a result an incomplete knowledge of the law, if s.63(2) of the 1992 Act applies, there could be a considerable number of potential claimants, who because of their age would not make a claim, and if no claim is made in time by a parent or parents are thus because of s.63(2) deprived of being able to make a claim." Part V of the Act deals with claims for payments. Sections 63 and 64 place duties on claimants which they would have difficulty carrying out if they were young children. For example:- "63(1). - Every claimant for cover under this Act shall lodge a claim in the prescribed form. 64. Responsibilities of claimant - (1) Every person who claims for or is in receipt of any rehabilitation, compensation, grant, 10. or allowance shall, when reasonably required to do so by the Corporation, - (a) Give to the Corporation the prescribed certificate of a registered health professional as to such matters, and containing such information, as the Corporation requires: . . . (c) Authorise the Corporation to obtain medical and other records which are or may be relevant to the claim: ( 8) Take action by way of rehabilitation in order to endeavour to terminate or reduce the extent of any impairment, disability, or handicap. (2) Every claimant under this Act and every person who is receiving or has received any payment or rehabilitation under this Act shall, whenever required by the Corporation, give to the Corporation a statement in writing, and, if the Corporation so requires, as a statutory declaration or in a form supplied by the Corporation, with respect to such matters relating to the person's entitlement or continuing entitlement to any payment or rehabilitation under this Act as the Corporation specifies." I do not overlook that s. 63(5) reads:- "Every claim or application made under this Act shall be signed by the claimant unless it is necessary for the claim or application to be signed by another person on the claimant's behalf. Any person signing a claim form on behalf of a claimant shall state his or her relationship to the claimant and the reason why the claimant is unable to sign the form.' 11. However, I consider that the word "claimant" in s.63(2) must be read as referring to people who have reached the age of majority or that the subsection must be read as if the words "or within 12 months after attaining the age of 20 years" were added to it. Conclusion: Section 5(j) of the Acts Interpreation Act 1924 reads:- () Every Act, and every provision or enactment thereof, shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, large, and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit:" I do not overlook that a number of the provisions in the 1992 Act and in the regulations in force under the Act are astonishing. However, it cannot have been intended by the Legislature that persons under the age of 20 years would lose their entitlement to compensation if they could not lodge a claim within twelve months after the date on which the personal injury was suffered and if no-one lodged a claim for them. In this case, I consider that the appellant is not caught by s.63(2) because he is still under the age of 20 years. He is under a disability until he reaches the age of 20 years. 12. The result is that the Corporation's decision in declining the claim under s. 63(2) is revoked and the appeal is allowed. Section 10(2)(b) of the Act excluding cover for personal injury to teeth that is caused by the natural use of those teeth does not apply to this claim. The Corporation has dealt with the claim on the basis that the injury in 1993 followed from the personal injury by accident in December 1988. . . . . . . . . . . .. (J.W. Imrie DCJ)