Brider v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 226 198 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 CHERYLE DARLENE BRIDER and CASEY HUGHES DCA 221/98 Appellants AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL This is an application on the papers for leave to appeal to the High Court pursuant to section 97 of the Act. The Notice of Appeal submits that the decision of the Learned Judge that the appellants did not have cover under section 8(2)(d) of the Act is erroneous in point of law. The appellants are the partner and son of Shannon Hughes. Mr Hughes had been infected with HIV as a result of a blood transfusion required from injuries suffered in a motor accident in 1984. Ms Brider became infected through her husband with HIV and their son, Casey, was similarly infected from birth. N In separate claims for cover by these appellants this Court has ruled that they cannot be claimants under section 5 of the Act as this Court ruled as a matter of law that medical misadventure under section 5 does not extend to persons once removed from the person who received the treatment. Leave was granted by this Court to appeal that decision to the High Court and that appeal is presently awaiting a hearing. Subsequent to this Court's decision in those claims the appellant's have sought cover under the Act under section 8(2)(d), contending that cover under this provision extends to them for personal injury which is a consequence of treatment for personal injury covered by this Act. In his decision on this question of law the Learned Judge ruled that the provisions of section 8(2)(d) do not extend to cover third persons and is limited to the immediate person who is the recipient of the treatment. The respondent does not oppose the appellants' application for leave in this case. Having regard to the fact that the whole question of third party entitlement under the Act in relation to medical misadventure was considered by this Court to be a matter of general and public importance, I find that a similar situation arises in relation to third party claims under section 8(2)(d). The question of law in this appeal is one which ought to be considered further and accordingly, leave to appeal to the High Court is hereby granted. DATED at WELLINGTON this 27 day of October 1998 M J Beattie District Court Judge Briderl.doc