Shanly v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No: 40/ 94 WELLINGTON REGISTRY DCA 198/93 BETWEEN: C M SHANL Y 58 94 / 2175 Appellant AND: ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent PLACE OF HEARING: Hamilton DATE OF HEARING: 15 June 1994 DATE OF DECISION: 15 June 1994 THE APPELLANT IN PERSON G D FAWCETT FOR THE RESPONDENT DECISION OF JUDGE J W IMRIE I am going to give a decision now while Mr Shanly and counsel for the Corporation are present. This appeal is concerned with the failure of Mr Shanly to make an election in writing pursuant to s 14 7(2) to receive his entitlement under s 78 or s 79 of the 1982 Act. 2 I have decided the appeal must fail. On the 13th of September 1991 Mr Shanly injured his right knee and lodged a claim with the Corporation in December 1991 when he requested private hospital treatment. That request was declined and the Corporation closed its file. The Corporation heard nothing further until Mr Shanly wrote by letter dated the 4th August 1993 advising that he had a permanent disability and should receive compensation for his injury. On the 10th of August 1 993 the Corporation advised that no lump sum could be considered as no election had been received by the 31st of August 1 993. Mr Shanly advised the Review Officer that he had been unaware of the requirement regarding election for lump sums and this requirement was not brought to his attention by the Corporation prior to 31 March 1993. The Review Officer confirms the Corporation's decision. In his Notice of Appeal dated the 20th of December 1993 Mr Shanly said he believed that the Corporation should have notified in writing all people with claims advising of the need to complete the election form by 31 March 1993. Today Mr Shanly has confirmed what he set out in his appeal form. He has confirmed that he feels he has been hard done by because he was not made aware of the change. He feels that 3 claimants should have been advised by the Corporation in writing of the change. He has compared the situation with what he does in his capacity in the insurance industry. He said that to change a condition in an insurance contract notice has to be given to the insured person. Mr Fawcett for the Corporation by consent was given leave to produce a schedule showing the type of publicity that the Corporation gave to the change and then he presented written submissions. Those submissions refer of course to s 14 7 and he has submitted in respect of s 14 7 that for Mr Shanly to be entitled to receive payment of lump sum compensation the following requirements need to be satisfied. First, a claim in respect of the personal injury had to be lodged before 1 October 1992. Secondly, Mr Shanly had to have an entitlement to compensation under s 78 or 79 of the 1982 Act but not received that compensation and made a written application for that compensation before the 1st April 1993. Thirdly, Mr Shanly has to have made an election under s 147(2) before the 1st April 1993. Mr Fawcett has submitted that Mr Shanly failed to make a written application for lump sum compensation before the 1st April 1993 and failed to make an election before the 1st April 1993. Mr Fawcett then submitted that because Mr Shanly did not make an 4 election under s 147(2) prior to the 1st April 1993 he is deemed to have elected to receive an independence allowance by virtue of s 147(3) and accordingly is not entitled to lump sum compensation. Mr Fawcett also referred to the decision of Judge Middleton in Webster v The Corporation given at Rotorua on the 16th May 1994. In that case the appellant suffered personal injury by accident on the 12th April 1985 and made a claim which was accepted by the Corporation and various amounts of compensation were paid up until June 1985 when the file was closed. In early July 1993 the appellant applied to the Corporation for lump sum awards in relation to the injuries received in 1985 but the application was declined. In dealing with the facts the Judge said that the appellant was unaware of the requirement that he had to lodge an election notice as he had been living in a remote location in the South Island between June 1991 and July 1992 and had been completely cut off from general news items which might have alerted him to his position. However the Judge said that the because the appellant had not made the necessary election by the 31st March 1993 he was deemed under ss (3) to have elected to receive an independence allowance and whatever the reason for his failure to make an election, the Act provided no discretion which would permit the Corporation to make a lump sum award and the appeal was dismissed. I have referred Mr Shanly to a copy of that decision. The only difference in essence between his situation and that of the appellant in the Webster case is that in fact no compensation was paid at all to Mr Shanly. Generally Mr Shanly accepts that the principle in the Webster decision applies to him. 5 Mr Fawcett said that there is a difference between insurance contracts and what is laid down by Parliament and that is of course correct. The result is that it is not possible for the Corporation to make a lump sum award because of Mr Shanly's failure to make an election and the appeal must be dismissed. The Corporation does not seek costs. (J W IMRIE D.C.J.) 6 NOTE Following my explanation to Mr Shanly that I would have to dismiss his appeal I discussed with Mr Fawcett and Mr Shanly whether he is entitled to lump sum compensation under s 14 7 ss ( 1). There is some difficulties in interpreting s 14 7 as a whole. It may be possible to argue that s 147(1) stands alone and that Mr Shanly's original claim form was a written application for compensation under s 78 or s 79 and he therefore comes within s 14 7( 1) which allows the Corporation to pay him compensation under s 78 or s 79 as he seeks. However that is not a matter for me and of course Mr Fawcett advises that the Corporation's view would be that Mr Shanly did not make a written application and that s 14 7( 1) must be read with the rest of the section. I simply set out these discussions so that Mr Shanly can consider whether it is worthwhile taking that point any further.