Hjaltason v Accident Compensation Corporation

Decision No. 111 /2008 IN THE DISTRICT COURT AT WELLINGTON UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 90/07) BETWEEN CATHERINE HJALTASON (ESTATE OF A HJALTASON) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 23 April 2008 Appearances: Ms S Thistoll for the appellant Ms L Rice for the respondent Judgment: 29 May 2008 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns cover for death by suicide and the possible entitlements of child care payment and survivor's grant. Central problems in the appeal concern whether the provisions in the 2001 Act authorise payment of entitlements for a period before the Act came into force, and whether suicide resulting from mental injury was a covered injury under at the time of the death of the deceased. Background [2] On 4 September 1998 Mr Hjaltason committed suicide. He left a wife and two children who were then aged 8 and 9. On 1 December 2005 Mrs Hjaltason applied for a funeral grant and survivors' grants. [3] The Corporation investigated the claim and accepted cover. ' However, given the circumstances of Mr Hjaltason's death, there was an issue about whether the claim was disentitled. [4] As Mr Hjaltason had died in 1998, but the claim was not lodged until December 2005, the Corporation considered the transitional provisions of the Injury Prevention, Rehabilitation, and Compensation Act 2001 in order to determine what entitlements were payable. The Corporation decided: that child care was payable in respect of Mr Hjaltason's sons from 1 April 2002; a funeral grant was not payable; survivors' grants were not payable. [5] Although there was more than one letter advising the claimant of the Corporation's decisions, it has been agreed that the effective date of the decision was 17 October 2006 and that review and appeal rights were exercised in time. A funeral grant was initially declined, but the respondent now accepts that it should be paid and it is no longer an issue in this appeal. General provisions [6] The provisions of the 2001 Act that apply generally are to be found in s 360 concerning cover and s 363 concerning entitlements. Under $360, a new claimant still has cover for personal injury suffered before 1 April 2002 providing: (a) the claimant would have had cover under this Act, had the injury occurred on or after 1 April 2002; and b) the claimant would have had cover under the Act that was in force at the time that the person suffered the injury. [7] There is no difficulty concerning cover, because self-inflicted personal injury and resulting death is not excluded from cover, but there are a number of disentitling provisions. [8] Under $363, entitlements for a claimant whose personal injury occurred before 1 April 2002 will be provided by the 2001 Act. The provisions are found in Part 4 and Schedule 1. [9] A central question in the appeal is whether the claimant would have been excluded from entitlements under applicable legislation. To begin with s 389 of the 2001 Act applies the disentitling provision of s 119 to a range of entitlements including survivor's grant (s 382) and child care (s 386). Section 1 19 provides: 119 Disentitlement for wilfully self-inflicted personal injuries and suicide 1) The Corporation [must not] provide any entitlement (except treatment) under Schedule 1 for - (a) a personal injury that a claimant wilfully inflicts on himself or herself or, with intent to injure himself or herself, causes to be inflicted upon himself or herself; or b) the death of a claimant due to an injury inflicted in the circumstances described in paragraph (a); or (c) the death of a claimant due to suicide. (2) This section does not excuse the Corporation from liability to provide a claimant with entitlements if the personal injury or death was the result of mental injury. [10] Under subs (2) the exclusion does not apply if the personal injury or death was the result of mental injury. The exceptions from disentitlement relate to lack of intent or a mental injury cause. Mental injury is defined in s 27 as a clinically significant behavioural, cognitive, or psychological dysfunction. In the present case, it is accepted that the claimant suffered a mental injury. Counsel indicated that the Corporation's policy is to accept that suicide is ordinarily a result of mental injury where there is no evidence to the contrary. [1]] Sections 450 and 120 of the Accident Insurance Act 1998 were similarly drafted transitional provisions, but it is important to note that s 120 of the 1998 Act, dealing with wilfully self-inflicted personal injuries, provided for exemption from disentitlement where the personal injury or death was the result of mental injury for which the insured had cover. So there had to be a covered mental injury in the first place. The successive provisions are set out for comparison as follows: [s 119 of 2001] .... (2) This section does not excuse the Corporation from liability to provide a claimant with entitlements if the personal injury or death was the result of mental injury. [s120 of 1998] ... (2) This section does not excuse an insurer from liability to provide an insured with statutory entitlements if the personal injury or death was the result of mental injury for which the insured had cover. 12] The death of Mr Hjaltason occurred when the 1992 Act was in force and the relevant provision then was s 81 of the Accident Rehabilitation and Compensation Insurance Act 1992: 81 Wilfully self-inflicted personal injuries and suicide 1) No compensation, grant, allowance, or rehabilitation shall be payable or provided under this Act in respect of - (a) Any personal injury that a person wilfully inflicts on himself or herself, or, with intent to injure himself or herself, causes to be inflicted upon himself or herself, or death resulting therefrom; or b) The death of any person where the death was due to suicide. (2) Nothing in this section shall affect the entitlement of any person where the personal injury or suicide was the result of mental injury or conduct of a kind described in section 8(3) of this Act. [13] In JRB v ARCIC (42/98), affirmed in Estate M C J Black (233/98) His Honour Judge Middleton held that the mental injury or conduct had to result from a s 8(3) event, that is to say mental or nervous shock caused by sexual assault. The contrary argument was that the two conditions were disjunctive and that subs (2) concerned either mental injury per se or the result of conduct amounting to a sexual assault on the claimant. Part of the reasoning in that decision was that the appellant's argument would mean that in all cases where a suicide victim is found to be of unsound mind there would be an entitlement to cover and that was not the apparent intention of the legislature. [14] Under the 1992 Act "mental injury" had its own definition as meaning a clinically significant behavioural, psychological, or cognitive dysfunction. The definition of mental injury has not changed over the relevant Acts. "Conduct" has no stand-alone meaning in the sub-section and needed to be read with the descriptor "of a kind described in section 8(3) of this Act", relating to sexual crimes. Ms Thistoll submitted that the whole phrase then defined two different causes leading to suicide for which cover could be obtained. 15] Dealing with that argument, I would respectfully depart from Judge Middleton's conclusion. I agree with Ms Thistoll's submission that the natural meaning of s 81(2) of the 1992 Act does not easily accommodate the conjunctive interpretation. "Mental injury" was a specifically defined expression and was not used in s 8(3). It was used in s 4 to extend the definition of personal injury to include any mental injury suffered by that person which is an outcome of covered physical injuries. Mental or nervous shock is a different concept and was used in s 8(3) to extend cover in cases of sexual crimes. The former is a mental dysfunction and the latter is a consequence of trauma. No doubt there is a wide area of overlap, but the expressions are different enough to conclude that the intent of s 81(2) was to describe separate circumstances in which suicide would not be excluded from cover. Furthermore, if s 81(2) was interpreted with narrow application to the outcome of sexual crimes, then suicide resulting from even covered mental injury would have been excluded. [16] The decision in JRB took account of concern that the disjunctive interpretation would unduly widen the exception from disentitlement. But there does not seem to be any strong indication of legislative policy. Entitlement was restricted in the 1992 Act (suicide from covered mental injury) and more generous in the 1998 Act (suicide resulting from mental injury). Those later provisions suggest that there has been no consistent legislative policy other than exclusion of deliberate self- inflicted injury by a person of sound mind. [17] For those reasons, I accept Ms Thistoll's submission that the appellant's death would not have been excluded from entitlements under the 1992 Act. Child care [18] Before looking at the two claims for entitlements, it is necessary to bear in mind the distinction between cover and entitlements. Self-inflicted injury is not excluded from cover but only from entitlements in certain cases. Under the 1992 Act, death was a covered personal injury if caused by accident, that is to say the application of a force or resistance external to the human body resulting in personal injury. The respondent has accepted that the death of Mr Hjaltason was personal injury caused by an accident. There was no suicide exclusion in the provisions that defined accident, personal injury and cover. In contrast, injury by disease or by the ageing process was excluded from cover under those provisions. The limited exclusion for suicide is only to be found in the parts of the 1992 Act that dealt with entitlements. The same scheme was carried forward in the 1998 and 2001 Acts, that is to say that suicide exclusions did not affect cover, but only entitlements. In each case, that part of the Act was the logical part in which to define suicide with no entitlements, and suicide for which some entitlements would be preserved. [19] The respondent accepts liability for child care from 1 April 2002 under cl 76 of Schedule I as a claim under the current Act. The conferment part of cl 76 states: 76 Child care payments for children of deceased claimant (1) The Corporation is liable to pay a child of a deceased claimant a payment for child care on receiving a written application for it by or on behalf of the child. . .. The provision then goes on to deal with calculations. The entitlement is available under the 2001 Act regardless of the date of death. [20] Some confusion stems from references to "claimant" which is capable of referring to the deceased person or to dependants. Under s 6 claimant is defined: claimant, in relation to a deceased claimant, includes the spouse, any child, and any other dependants of the deceased claimant Under s 76 the child is a claimant. The deceased did not himself lodge a claim for cover or entitlements. There would be cases in which a person could lodge a claim for cover for self-inflicted injury before dying from the injury. The provisions require the deceased to be notionally regarded as a claimant. [21] Clause 77 then goes on to define the duration of payments: 77. Duration of child care payments 1) The Corporation is liable to make payments for child care on and from the date of death of the deceased claimant. (2) The child ceases to be entitled to child care payments on the earlier of - a) 5 years after the date on which the entitlement started; or b) on the date on which the- i) child turns 14 years; or ii) if the child is older and needs child care because of his or her physical or mental condition, the child ceases to need child care. . . .. [22] In this case the relevant period was five years and the entitlement started at the date of death. The respondent submits that payments can nevertheless be made only from the date of commencement of the 2001 Act so that only the tail end of the child care would be available following the late application. The respondent submits that, in relation to payments before 1 April 2002, the claimant has to rely on the transitional provisions. [23] The period of five years spanned the three compensation statutes already referred to because it began before the 1998 Act came into force and ended after the 2001 Act came into force. Analysis of the transitional provisions begins with their purpose expressed in s 352 352 Purpose of this Part The purpose of this Part is to set out- (a) how the Corporation is to determine under this Act whether or not a person has cover for a personal injury suffered before 1 April 2002, which may involve applying a former Act: (b) the entitlements that the Corporation is required to provide under Part 4, this Part, and Schedule I for personal injury suffered before 1 April 2002 if such cover has been accepted; . . .. [24] Section 352 provides two steps, first to establish whether a person has cover, and secondly to regulate entitlements "if such cover has been accepted", which must refer to cover being accepted under the 2001 Act for an earlier personal injury. In this case the transitional provisions govern the enquiry as to whether the deceased personal injury was covered, and what entitlements flow from that. It is an important starting point, because submissions in this appeal were directed to the application of certain provisions in the 2001 Act without depending on the transitional provisions. The next relevant transitional provision is s 386: 386 Child care payments for children of deceased persons (1) A person who, at the close of 31 March 2002, was entitled, because of ection 448 of the Accident Insurance Act 1998, to receive compensation under clause 76 of Schedule 1 of that Act, continues to be entitled to receive it after that date. (2) However, the person's entitlement after that date is to be determined in accordance with Schedule 1. 25] Neither party in this appeal relied on this transitional provision. Ms Thistoll for the appellant submitted that the transitional provisions do not apply because the claimant can rely on the literal meaning of clauses 76 and 77 conferring an entitlement on a child of a deceased claimant. Ms Rice for the respondent submitted that s 386 did not apply because the claimant was a person who was disentitled by virtue of the suicide provisions in the earlier statutes, and therefore was not "entitled" under subs (1). I think it must nevertheless be accepted that a person entitled at the close of 31 March 2002 includes a person who had not applied but was entitled subject to the necessary application, in line with Campbell and Handley v ACC (CA138/03 29 March 2004). [26] It is therefore important to ascertain when the transitional provisions apply generally. Section 352 applies the transitional provisions when ascertaining cover and entitlements for personal injury suffered before 1 April 2002. Section 363 then goes on to state that the transitional provisions provide entitlements. 363 Application of sections 364 to 387 (1) Sections 364 to 380 provide for entitlements for a person who, having suffered personal injury before 1 April 2002, has cover accepted under any of sections 355 to 360 (2) Sections 381 to 387 provide for entitlements for the spouse, children, and other dependants of such a person, if the personal injury for which the person has cover is death or is physical injuries from which he or she dies. (3) The provision of entitlements arising from cover accepted under any of sections 355 to 360 is subject to Part 4 and Schedule 1, unless the effect of any of sections 364 to 391 is to the contrary. [27] Section 360 concerns claims for cover under former Acts not lodged until on or after 1 April 2002. Cover in the present case is therefore obtained under s 360 and then s 363 refers to the transitional provisions that confer entitlements on either an injured claimant or a derivative claimant, namely the spouse, children, and other dependants. Contrary to Ms Thistoll's submission, this appears to mean that the entitlements are to be found in the transitional provisions, not in the general provisions of the 2001 Act. Subsection (3) then goes on to state that the entitlements are subject to Part 4 and Schedule 1 of the 2001 Act, that is to say the conditions for those entitlements are not determined under earlier provisions, but under the 2001 Act. That is echoed in s 386(2) that entitlements to child care after 1 April 2002 are to be determined in accordance with Schedule 1. [28] I conclude that clauses 76 and 77 were not intended to be applied without reference to the transitional provisions. The above provisions would be largely redundant if that were so. Furthermore, to apply those provisions with effect before the commencement of the Act would offend the ordinary presumption against retrospectivity, which is mentioned later in this judgment. [29] Section 386 preserves an entitlement to child care for a person who was entitled because of section 448 of the Accident Insurance Act 1998. Section 448 preserved the 1992 entitlement as follows: 448 Child care payments for children of deceased persons Compensation under clause 76 of Schedule 1 continues to be payable to a person who, immediately before I July 1999, was entitled to compensation under section 56A of the Accident Rehabilitation and Compensation Insurance Act 1992. [30] I would find that the claimant was such a person because, for reasons stated later in this judgment, the claimant was not disentitled under the 1992 Act and was entitled immediately before 1 July 1999. [31] I note that there is a possible conflict between the general disentitling provision for suicide under s 120 of the 1998 Act and the preservation of entitlement under s 448. [32] But the respondent submits that s 386 of the 2001 Act does not provide an avenue for obtaining a back payment of child care. A qualifying person only continues to be "entitled to receive it after" 31 March 2002, and it is to be "determined in accordance with Schedule 1", not under the provisions of the earlier Acts. That argument has a good deal of force. [33] A recent analysis of the problems of retrospectivity is to be found in Te Wake v ACC (High Court, Wellington CIV-2005-485-2451 8 June 2007, Clifford J) where it was held that a provision in the 2001 Act reclassifying persons who were on parental leave at the time of suffering incapacity would apply to the appellant, who had not been entitled under the 1998 Act. Clifford J held that the new provisions entitled the appellant prospectively from the commencement of the 2001 Act, but did not apply retrospectively in order to confer entitlement from the date of incapacity to 31 March 2002, a period during which she was not entitled to weekly compensation under the prevailing legislation. [34] In his judgment, Clifford J considered the effect of two earlier decisions concerning the question of retrospectivity. The first was Dean v ACC [1982] ] NZLR 750 in which the Court of Appeal considered an amendment to s 114 of the Accident Compensation Act 1972. The amendment conferred more favourable conditions on the assessment of lump sum compensation once a permanent injury had stabilised. If Mr Dean had reached the time for assessment before the amendment, he would not have had the benefit of the new provisions. The Court held that the new provisions applied when he reached the time for assessment after the amendment had come into effect. The amendment was not retrospective because it applied conditions of assessment to a contingent event which occurred when the amendment was in force. [35] In Thimbleby v ACC CA 42/03 12 May 2004, the Court of Appeal rejected a retrospective interpretation of s 40(2) of the 1992 Act which was inserted in 1996. The new provision improved the lot of employees who had been in paid employment for only a short period before the event making them unable to work. The fact that the new provision removed an inequity was not enough to make it retrospective. The Court followed the reasoning as in Dean and applied the new provision from the date on which it came into effect. [36] In this case the respondent accepts that clauses 76 and 77 apply the child care provisions from the commencement of the 2001 Act but argues that it has no retrospective effect. The appellant can only seek child care assistance under the current legislation and cannot resort to the former Act. I agree with that submission. I note that in Te Wake, Clifford J observed: [51] As regards cover, s 20 provides that a person will only have cover where they suffer personal injury in New Zealand on or after 1 April 2002. On the basis of that very explicit general principle, Mrs Te Wake would fall outside the scheme of the 2001 Act. [37] The same starting point must apply in this case. That is an added reason why clauses 76 and 77 could not be applied to prospective payments on a stand alone basis without specific provision. There is no cover under the 2001 Act for personal injury suffered before 1 April 2002 except to the extent provided in the transitional provisions. Section 386 (1) gives a right to child care payments under cl 76 of the new Act. It does not confer rights under s 448 of the former Act. It only refers to s 448 to describe the class of persons who are entitled to receive child care after 31 March 2002. [38] Ms Thistoll submitted that the argument against retrospectivity that was accepted in Te Wake does not apply here because this appellant would have been entitled to child care under each successive statute. In that way, the claim is different from the circumstances considered in other cases involving retrospective arguments. In each of the cases mentioned, the appellant failed to obtain the backdated benefit of a new provision. The appellant in the present case could have obtained child care payments under the 1992 Act, but was defeated by the Act being revoked. If the application had been made during the currency of the 1998 Act, then s 448 would have continued the entitlement, even though child care could not have been claimed for a person who died by suicide during the currency of the 1998 Act, unless the self-inflicted injury was a consequence of a covered mental injury. So this claimant would have secured child care for five years if a claim had been made before the 1992 Act was revoked. [39] If the claim had been made when the 1998 Act was in force, it would not have run into quite the same retrospectivity argument. Section 448 states that child care "continues to be payable" to a person who "was entitled". That transitional provision differed significantly from s 386 which provided that the person "continues to be entitled to receive it after that date". Section 386 was clearly against retrospectivity. For the purpose of this argument, I accept that s 448 preserved an entitlement and that the appellant was a person who "was entitled" at the close of 31 March 2002. The operation of the various provisions was therefore different from the three cases that have been referred to because the appellant was always entitled. The transitional provisions generally do not operate to extinguish entitlements. [40] Another problem was mentioned by the Reviewer, that is s 126 of the 2001 Act: 126 Corporation to pay amount to claimant's estate (1) This section applies to any entitlement (other than lump sum compensation under Part 3 of Schedule 1) that is a payment that the Corporation - a) is liable to make to a claimant, but that has accrued and is unpaid at the date of the claimant's death; or (b) would have been liable to make to the claimant, if he or she had lodged a claim for it. (2) The Corporation is liable to pay any amount to which this section applies to the claimant's estate if the estate applies for it within 3 years after the date of the claimant's death. [41] Section 126 appears to be directed to cases where a deceased person did not obtain an entitlement before death. Whether s 126 applies to the present cases depends on who is to be regarded as the claimant. The dependant child is defined as a claimant under s 6 and has not died. The Reviewer accepted an argument by the Corporation that s 126 was a bar, however I would be prepared to hold that s 126 does not apply. Decision [42] I agree that s 386 cannot be given a retrospective effect in order to allow child care payments before 1 April 2002. In Dean, Thimbleby and Te Wake, claimants have been able to take advantage of new provisions that improve the basis for their claim by defining the conditions of eligibility for and entitlement, or improving the basis for calculation of the resulting compensation. But none of those claimants obtained compensation on an improved basis before the commencement of the new statute or amended provision. [43] In this case, the appellant seeks a backdating that would require retrospective effect being given to clauses 76 and 77 of Schedule 1. The submission rests on the literal meaning of cl 77(1) that "the Corporation is liable to make payments for child care on and from the date of death of the deceased claimant". [44] There is a presumption against retrospectivity in ss6 and 7 of the Interpretation Act, which provide: Enactments apply to circumstances as they arise - An enactment applies to circumstances as they arise. Enactments do not have retrospective effect - An enactment does not have retrospective effect. [45] As Clifford J said in Te Wake, legislation in New Zealand does nevertheless have retrospective effect as Professor Burrows explained in Statute Law in New Zealand (3ed 2003), in the following terms: "However, it is now apparent that this black-and-white answer is not to be taken at face value. ... Parliament is well able to legislate retrospectively if it does so expressly, and what can be done expressly can also be done impliedly. In other words, legislation can be given retrospective effect if it is Parliament's clear intention that that be the case This is supported by s 4(1) of the Interpretation Act 1999: 4. Application - (1) This Act applies to an enactment that is part of the law of New Zealand and that is passed either before or after the commencement of this Act unless - the enactment provides otherwise; or the context of the enactment requires a different interpretation. However, what s 7 at least does is to establish a presumption that an enactment is not retrospective [46] The question is whether the meaning of cl 77 from its text and in light of its purpose provided for payments for child care on and from the date of death of the deceased until the commencement of the 2001 Act on 1 April 2002. As Ms Thistoll submitted, this was a grant that was available under the 1992 Act so that the claimant could have obtained payments under s 56A of the 1992 Act and under s448 of the 1998 Act, if application had been made in time. [47] For the reasons I have expressed, I consider that the application of Schedule 1 can only be reached through the transitional provisions including s 386. One difficulty with an interpretation favourable to the appellant is in the words of s 386 enacting that a claimant "continues to be entitled to receive it after 31 March 2002. It would have been different if the Act had simply provided that the claimant 'continues to be entitled" to the grant. But the explicit continuation of entitlement to receive the compensation after a certain date does not favour retrospective payments before the Act came into force. The transitional provisions do not preserve the operation of the former sections but only apply the new legislation to confer entitlements for injuries covered under former Acts. [48] In Dean and in Te Wake, where claimants were successful in obtaining the advantage of new provisions affecting entitlements arising or having their genesis under earlier legislation, the claimants were not thereby entitled to payments prior to commencement of the new statute or new provisions. I accept that there is a stronger argument of fairness than there was in Te Wake, where Clifford J observed that retrospective provision would be contrary to the statute that was in force at the time. Even so, I reach the conclusion that s 386 and clauses 76 and 77 only authorise payments from 1 April 2002. The appellant relating to child care is therefore dismissed. Survivor's grant [49] The claim for survivor's grant is made under s 382 of the transitional provisions of the 2001 Act. Under s 382(1) the conditions for payment of a survivor's grant were that: (a) a person died on or after 1 July 1992 and before 1 April 2002 as a result of personal injury covered by the Accident Rehabilitation and Compensation Insurance Act 1992 or the Accident Insurance Act 1998; and (b) a survivor of that person is entitled to be paid a survivor's grant before 1 April 2002; and c) the Corporation has not paid a survivor's grant to that survivor before 1 April 2002. 50] There was a transitional provision to the same effect in s 444 of the 1998 Act. (1) On or after 1 July 1999, a survivor's grant is payable under clause 66 of Schedule ] if - a) A person died on or after 1 July 1992 and before 1 July 1999 as a result of personal injury covered by the Accident Rehabilitation and Compensation Insurance Act 1992; and b) The former Corporation has not paid a survivor's grant before 1 July 1999. [51] If the claimant was entitled to claim under the 1992 Act as a result of personal injury covered under that Act, the entitlement was preserved under the transitional provisions in the 1998 Act and under the continued transitional provisions of the 2001 Act. The present appellant would have been eligible for a survivor's grant based on a covered injury, but for the application s 120. Section 444 referred to a survivor's grant becoming payable under clause 66 of Schedule 1. But an entitlement payable under Schedule 1 of the 1998 Act was barred by s 120 in the case of suicide, unless the personal injury or death was the result of mental injury for which the insured had cover. The insured had cover for death by personal injury but did not have cover for the causative mental injury. No grant was payable during the currency of the 1998 Act. [52] The appellant argues that the claimant is a survivor who was entitled to be paid a survivor's grant before 1 April 2002 because such a grant would have been payable under s 56 of the 1992 Act, though not under the 1998 Act. The appellant submits that the natural meaning of before does not mean "immediately before" [53] Part of the respondent's argument is that the grant could not have been claimed during the currency of the 1998 Act. It would be an unusual result for all survivor's grant claimants who were barred under the 1998 Act to become entitled three years later under the less restrictive provisions of the 2001 Act. In that way, the appellant's argument would involve the 2001 Act having a retrospective effect of reviving eligibility for survivor's grants. [54] There is a good deal of force in the appellant's submission concerning the natural meaning of s 382(1). The drafter has consistently used the expression "immediately before" to indicate an entitlement subsisting when a new compensation statute took effect. Examples in s 386 of the 2001 Act and s 448 of the 1998 Act have been referred to in this judgment in relation to child care payments. The natural meaning of $382 (1)(c) refers to any unpaid survivor's grant that could have been claimed at some time before the provision came in force. The submission is greatly reinforced by reference in subs (1)(a) to death during the period of the 1992 Act. A survivor's grant arising as a consequence of a death during the currency of the 1992 Act is expressly included. Use of the present tense in subs (1)(b) seems to be an oddity. The clause is adjectival, defining the qualifying person as a survivor entitled before ] April 2002. It might have been more logical to refer to a survivor who was entitled to be paid a survivor's grant before 1 April 2002, but there is nothing in the use of the present tense that affects the overall meaning. [55] The respondent submits that the appellant was never entitled. The barrier to a claim under the 1992 Act was s 81(2) disentitlement for death from self inflicted injury, except in cases of mental injury or mental or nervous shock caused by sexual assault. I have taken a different view from the reasoning in JRB v ARCIC (42/98) and Estate M C J Black (233/98). I hold that death from self-inflicted injury resulting from mental injury was exempted from disentitlement under the 1992 Act. Mental injury did not require a cause related to sexual assault but was injury within the definition of "a clinically significant behavioural, cognitive, or psychological dysfunction". The respondent accepts in this case that the death resulted from mental injury. [56] I find therefore that the claimant was entitled to a survivor's grant before 1 April 2002, namely a survivor's grant under s 56 of the 1992 Act. Therefore the claimant is entitled to a survivors grant which has not yet been paid. [57] The respondent's decision is modified to the extent that the claimant is entitled to a survivor's grant. [58] The appellant has been partly successful and will have costs of $2,500 and disbursements to be fixed by the Registrar - . . Judge D A Ongley District Court Judge