Bourne v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 91 199 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 BETWEEN ALISTAIR CONRAD BOURNE DCA 264/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of February 1998 APPEARANCES: Mr A C Bourne, in person Mr S Condie, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent was correct to cease payment of weekly compensation to the appellant on 30 June 1997 by applying the provisions of section 142 of the Act. Background facts N The appellant suffered personal injury by accident in 1976 and was granted cover under the 1972 Act which was then in force and his entitlement to compensation continued under the 1982 Act when that Act came into force and he was still in receipt of weekly compensation when the 1982 Act was repealed and replaced by the 1992 Act. The appellant was born on 25 November 1932 and therefore attained the age of 65 on 25 November 1997. The appellant became eligible for national superannuateon on 25 May 1994, ie when he had attained the age of 61 years and six months. In July 1993 the respondent wrote to the appellant advising him of his right to elect to continue to receive weekly compensation instead of national superannuateon as was provided by section 142 of the Act, which provision came into force on 1 July 1993. The appellant did so elect to continue to receive weekly compensation and acknowledged that his entitlement to receive that payment only continued for the period of entitlement stated in section 142. In May 1997 the respondent again wrote to the appellant to advise that under section 142 of the Act his entitlement to weekly compensation would cease on 30 June 1997, being the date provided in section 142 and being the earlier of that date or his 65th birthday. It was that decision which the appellant sought to review. The Review Officer, in his decision of 16 July 1997, confirmed the correctness of the respondent's decision that it had no authority to go outside the provisions of the Act and continue payment to the appellant until his 65th birthday. The appellant filed an appeal against that decision in this Court and a hearing took place on 18 February 1998. At the hearing the appellant indicated that he was receiving weekly compensation pursuant to section 60 of the 1982 Act and that he had an "agreement" with the respondent that his pension would continue until he attained MAUCK_DC_10IVOLI\GROUPS\AUTHORIT \BEATTIE\Bourne.doc 3 the age of 65. As the appellant had raised the question of an agreement I adjourned the matter to allow counsel for the respondent to investigate and make any further submissions. Counsel for the respondent confirmed that the appellant had been receiving weekly compensation pursuant to section 60 of the 1982 Act and that it was on this basis that his weekly compensation continued under the 1992 Act pursuant to the transitional provisions of section 138 of the 1992 Act. It is the appellant's contention that section 60 of the 1982 Act entitled him to receive that permanent pension, as he called it, until he attained age 65, and that is what he had been advised by the respondent at the time that permanent pension was assessed and fixed. Mr Condie, counsel for the respondent, submitted that the question of the duration of the appellant's entitlement was covered by section 142 of the Act and that the respondent was correct to rule that his entitlement to compensation ceased on 30 June 1997 as provided in that section. Counsel further submitted that the respondent was not able to go outside the provisions of the Act and that no agreement, waiver or estoppel could apply in respect of the appellant's claim based on any previous understanding given to him by the respondent. Counsel cited the decision of the High Court in Wong-kam HC 97/97 (Auckland HC). Section 142 of the Act provides as follows: 142. Cessation of earnings related compensation on account of age - (1) Subject to this section, where any person is receiving payments by virtue of section 138 of this Act, that compensation shall not cease to be payable, on account of age, until the close of the 30th day of June 1997, or at the age at which it would have ceased to be payable under the Accident Compensation Act 1972 or the Accident Compensation Act 1982, whichever first occurs. (2) No compensation shall be payable under this section to any person- MAUCK_DC_10\VOL I\GROUPS\AUTHORIT\BEATTIE\Bourne.doc 4 (a) After the 30th day of June 1994, where the person attains the national superannuateon qualification age before the Ist day of July 1993, unless that person has made an election not to receive national superannuateon in respect of any period commencing after the 30th day of June 1994; or b) Where that person attains the national superannuateon qualifiction age on or after the Ist day of July 1993, unless that person has made an election not to receive national superannuateon in respect of any period commencing after the expiry of 12 months from the date of attaining the national superannuateon qualification age. Decision The 1982 Accident Compensation Act was repealed by the 1992 Act as from 1 July 1992. As a consequence of that repeal the provisions of section 66 of the 1982 Act, which provided that a person receiving compensation under section 60 of the Act would have that compensation continue until he attained the age of 65, ceased to apply. The statutory provision governing the cessation of compensation because of age under the 1992 Act, which replaced section 66 of the 1982 Act, was section 52 and in broad terms it provides that entitlement to weekly compensation ceases when that person attains the national superannuateon qualification age. If that provision were to apply to the appellant his entitlement to weekly compensation would have ceased on 25 May 1994. However, section 142 was enacted to ameliorate that situation where persons in receipt of weekly compensation and who were nearing the national superannuateon qualification age at the time the 1992 Act came into force would be given some special consideration and leeway from the provisions of section 52 of the 1992 Act. The appellant comes into that category of transitional claimant and under the provisions of section142 he was in fact given an extension of a further two years and one month to a date which was in effect only five months short of his 65th birthday in any event. WAUCK_DC_10IVOLI\GROUPS\AUTHORIT\BEATTIE\Bourne.doc The appellant is one of a large number of claimants who have been disadvantaged to some extent by the change in the law as to the cessation provisions of weekly compensation. The High Court in the decision of Wong-kam (supra) has now confirmed the decisions of this Court that the respondent cannot go outside its statutory powers and that the doctrines of waiver or estoppel cannot apply. The rule is also succinctly stated in Wades Administrative Law 6th ed. at p 64: The primary rule is that no waiver of rights and no consent or private bargain can give a public authority more power than it legitimately possesses. Once again the principle of ultra vires must prevail when it comes into conflict with the ordinary rules of law. Thus it is that the respondent cannot be held to any understandings or advice it may have given to the appellant as to the duration of his entitlement to his 65th birthday and the provisions of the statute are paramount and must apply. For the foregoing reasons therefore the respondent was quite correct to rule that the appellant's entitlement to weekly compensation ceased on 30 June 1997 as provided in section 142)(1) of the 1992 Act. This appeal is therefore dismissed. DATED at Wellington this (2 day of April 1999 M J Beattie District Court Judge WAUCK_DC_10\VOL I\GROUPS\AUTHORIT \BEATTIE\Bourne.doc