Jessop v Accident Rehabilitation and Compensation Insurance Corporation

Decision NO 63/96 IN THE DISTRICT COURT DCA No. 167/96 WELLINGTON REGISTRY UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 48 95 0264 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN CRAIG CHARLES JESSOP APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 23 July 1996 Date of Decision: 27 August 1996 Counsel for the appellant: G T Winter Counsel for Respondent: Miss F M Patterson DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether or not the appellant is eligible for the purchase and modification of a vehicle under the Accident Rehabilitation Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicles) Regulations 1992. The appellant aged 29 years was injured on 24 July 1989. Due to diabetes, at the time of the accident the appellant already had a 35% loss of vision. The appellant 2 has suffered further damage to his eyes as a result of the accident which led to complete blindness. Mr J. H. Henderson, an opthamologist assessed the accident as causing 65% of the appellant's visual loss in his report of 20 February 1990. Under s.78 and 79 of the Accident and Compensation Act 1982 the appellant was granted a total of $21,050. In 1990, the appellant underwent an unsuccessful operation overseas in an attempt to restore his sight. On 24 February 1995 the appellant applied for the purchase of a motor vehicle through his rehabilitation co-ordinator. On 11 April 1995 the Corporation declined the appellant's application for the following reasons: 1. "There was no need for permanent vehicle modifications to accommodate your dog as there are dog guards available for $46.25 which are adjustable to fit most cars, especially station wagons and hatchback and are transferable. There are also dog safety harnesses available. 2 . Your requirements with relation to dialysis are unrelated to your accident." The appellant applied for a review of that decision. In his decision of 6 June 1995, the Review Officer found that the appellant did not meet the criteria in Regulation 5 of the Vehicles Regulations. It was held that the appellant was able to travel in a vehicle as a passenger without modifications to that vehicle and he was therefore excluded from entitlement under the regulations. 3 The appellant is blind, diabetic and without kidneys. He relies on his seeing eye dog to safely negotiate his way in the world. Seeing eye dogs are expensive and highly trained. The appellant has developed a programme entitled "Other Realities Service to the Community and to Obtain Independence in Daily Living". This programme is used extensively throughout Northland from the Brynderwyn Hills in the south to Kaitaia in the north through the auspices of the Northland Disabilities Centre. Schools, community groups, servants' agencies and government departments all use this education programme to give the abled an experience of the challenges of disability. The appellant contracts the services for the programme. Participants can number up to 30. In order to carry out the programme a wide range of disabling devices in support are used which occupy most of the car not taken up by the driver and the appellant. The appellant is unable to drive a motor vehicle because of his blindness. He relies on the goodwill of others to drive him. Because of the complications of diabetes and kidney failure the appellant finds it extremely difficult to travel with the seeing eye dog at his feet. His counsel contended that in any event to do so is unsafe as in an accident the dog could be severely injured or killed. The dog could also injure the occupants in the car. The dog's veterinary surgeon has suggested that the seeing eye dog be placed securely in a certified dog restraint to ensure the animal's protection in the event of an accident. 4 Counsel for the respondent referred to two assessments by Occupational Therapists. The first report dated 3 April 1995, stated that the appellant required modifications to the vehicle to enable him to undertake dialysis in the vehicle due to his diabetic condition. The report also recommended that bars be installed in the back of the vehicle to contain the appellant's guide dog. On the 24 October 1995, another occupational therapist reported to the respondent that the vehicle used by the appellant would require modifications such as a tow bar for mounting a dog carrier and a detachable dog box suitable for a large dog. The report also said: "It is recommended that dogs who travel in vehicles should be restrained with a certified dog restraint. A separate approved dog carrier may be considered as a most suitable option for Craig's guide dog. This is to maintain a most sterile environment inside the vehicle as well as allowing for adequate space for passengers and equipment." An opinion was also sought from a veterinary surgeon. In a letter dated 24 October 1995, Dr Ross Woods stated: "It is my opinion, that all dogs regardless of whether they are guide dogs or not should be restrained in a suitable dog restraint while travelling in a motor vehicle. In the case of the dog being seriously injured as a result of that dog being thrown forward during a motor vehicle collision the seriousness of the injury resulting from the impact could result in the dog having to be destroyed". 5 Regulation 5 of the Vehicle Regulations states as follows: "5. Entitlement to assistance - To be entitled to payment for the purchase of and modification to a vehicle a claimant must, by reason of a long term disability, be - (a) Permanently unable to drive; or (b) Unable to travel as a passenger in a vehicle without modifications to that vehicle." The appellant must show pursuant to regulation 5 of the vehicles regulations that he is unable to travel as a passenger in a vehicle without modifications to that vehicle. Regulation 6 provides that the object of the approval is cost effectiveness is to allow the claimant to achieve independence of daily living. Regulation 8 sets out examples of the sorts of modifications without limitation that might be appropriate including where necessary "wheelchair carriers". Counsel for the appellant submitted that he appellant because he is blind as a result of his accident he is unable to travel as a passenger in a vehicle without modification. A blind person with a seeing eye dog should be able to travel safely as a passenger and cannot do so unless the animal is properly secured in a dog box outside the vehicle. Not only is there a potential of the unrestrained dog to cause injury to others in the vehicle but the dog itself risks severe injury in the event of an accident. The appellant is endeavouring to live independently. I accept that the primary purpose for the purchase or modification of the vehicle would be to ensure that the appellant, his driver and one or more disabled passengers continue their education 6 programme "Other Realities". The material used by the appellant and others in the education programme together with another passenger does not allow for the dog to be safely secured. Counsel for the appellant contended that the Act allows for the provision of wheelchair carriers and it seems unreasonable to deny blind people the ability to purchase and modify a vehicle with a dog box. Counsel for the respondent submitted the appellant is able to travel as a passenger in a vehicle without modification to the vehicle and is therefore not eligible for the entitlement. Various options have been recommended for restraining the appellant's dog in a vehicle such as a safety harness, detachable dog box and a dog guard. This equipment does not come within the scope of the modifications that were submitted covered by the vehicles regulations. She submitted that applying the rule of statutory interpretation, a ejusdem generis, neither a dog harness, dog guard nor detachable dog box could be described as being in the same class or category as the items listed in Regulation 8(1) as none of the items in Regulation 8(1) are for use in restraining animals. The items all related to the assistance of a claimant with restricted mobility because of injury. The respondent considered the appellant to be mobile. Counsel for the respondent further submitted in addition, all of the items listed need to be affixed to the vehicle. The appellant's dog can be restrained in a car by using a detachable guard without changing or altering the vehicle in any way. Because of 7 this the dog guard is taken out of category of equipment contained in regulation 8 subsection 1. There is no doubt the appellant has a long term disability and is permanently unable to drive. I agree with counsel for the appellant that a seeing eye dog is, after all, another form of mobility aid to ensure a movement towards independence. I do not accept the respondent's conclusion that the appellant is mobile without the dog and in my view the appellant is unable to travel as a passenger vehicle without modification. I am in no doubt that the appellant is seeking an independent living through a remarkable programme. The modification has to be a reasonable cost benefit. The appeal is allowed. The appellant is also entitled to costs. If these cannot be agreed between the parties than leave is given to apply to have the matter resolved. (Jane H. Lovell-Smith) District Court Judge