Magrin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 151 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN CARMEN MAGRIN of Auckland Appellant (Appeal No. DCA 131/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied for leave to appeal against the decision of this Court issued on 1 October 1996 under No. 97/96. The issue on appeal was whether the appellant was entitled to awards of lump sum compensation pursuant to s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992. In her decision Her Honour Judge Lovell-Smith concluded that the issues raised under s.147 had been the subject of numerous decisions by the Court and that the wording of the section was clear and unequivocal. In her view the absence of a written form of election to receive lump sum compensation over an independence allowance was fatal to the appellant's appeal. In submissions in support of leave to appeal to the High Court the appellant's counsel has submitted that the facts of this case are distinguishable from the facts in the cases upon which Judge Lovell-Smith relied in her decision or, alternatively, that those particular cases were wrongly decided and were based on a fundamental misconstruction of s.147. Counsel submitted that the misconstruction is that under s.147(1) is not mandatory as the Court has held. In addition, it is submitted that the issue of entitlement under s.147 is a matter of public importance because of the 2 number of people who are or may have been entitled to awards under s.147 had the Court correctly determined the meaning of that section. The respondent submits that the line of cases established in the District Court have been consistent in finding that the provisions of s.147 are mandatory in the requirement that a written form of election has to be filed with the respondent. The respondent further submits that s.147 provided a strict mechanism for the transitional period between the regime established under the Accident Compensation Act 1982 and the Accident Rehabilitation and Compensation Insurance Act 1992. To this end it is submitted that s.147 must be interpreted and applied in the context of the policy behind the new Act with the result that election of lump sum compensation is mandatory to entitlement to such compensation. The District Court decisions have all followed the same approach by holding that s.147 provides a mandatory requirement to make a written election before entitlement of lump sum compensation can be available. However, the argument put forward by the appellant raises an issue which has not been the subject of consideration by the High Court and is an issue which has been raised on numerous occasions in appeals before this Court. In the circumstances I consider that it does raise a question of law which ought to be considered by the High Court. Application for leave to appeal to the High Court is therefore granted. The question of costs is reserved. DATED at WELLINGTON this 22 day of July 1997 A W Middleton District Court Judge de131-95.doc(rd)