Sweeney v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 14 6 197 HELD AT WELLINGTON 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 DANIELLE ELLEN SWEENEY Appellant (Appeal No. DCA 123/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE D A ONGLEY This appeal is heard by consent on the papers. The materials referred to by the Court include the file and submissions which were available to the Review Officer and the written submissions made in relation to this appeal. The appellant resides in Australia and the question in this appeal concerns the cost of assessment of the appellant for an independence allowance under the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant suffered a whiplash injury in a motor vehicle accident in New Zealand on 14 April 1995. She was treated initially in New Zealand and then she returned to Sydney where she received further medical treatment. The Corporation received her application for an independence allowance on 15 September 1995 with a request that the assessment take place in Sydney. The Corporation declined the request for the assessment to be done in Sydney because it is required by s 88 of the Act to be done by a person approved for the purpose by the Corporation. The Corporation has not approved any person in Sydney for the purpose of carrying out an independence allowance assessment. Section 88 of the Act provides in part: - 2 - 88. Payments to persons outside New Zealand - (1) Compensation based on weekly earnings, independence allowances, and survivors' grants shall be paid in accordance with this section to persons who are outside New Zealand (2) No payment shall be made under this Act in respect of any treatment, service, rehabilitation or related transport costs incurred outside New Zealand unless required or permitted by regulations made under this Act. (3) No compensation based on weekly earnings shall be payable to any person who suffered personal injury outside New Zealand which is covered by this Act, and who is not for the time being in New Zealand, unless that person - (a) Had earnings within the meaning of this Act while absent from New Zealand prior to suffering the personal injury; or (b) Had earnings within the period of 6 months immediately before leaving New Zealand (4) No compensation based on weekly earnings and no independence allowance shall be payable to any person outside New Zealand unless the condition of the person has been assessed for the purposes of this Act by a person approved for the purpose by the Corporation (5) Where compensation based on weekly earnings or an independence allowance is payable outside New Zealand and the person's continuing right to receive that compensation or allowance is to be assessed, the Corporation shall not be liable to meet any costs incurred by the person overseas or any costs relating to the return of the person to New Zealand for examination or assessment in excess of the costs that the Corporation would be required to meet if the person had remained in New Zealand. The Act contemplates that compensation and services outside New Zealand will not be available as readily as in New Zealand. Treatment and other services are only permitted to the extent provided in regulations. Assessment overseas must be by an approved person, both for purpose of weekly earnings and independence allowance. Under subs (5) the Corporation is relieved of costs of re-assessment. Subsection (5) appears to relate only to assessment of a continuing right to compensation, with the possible implication that the Corporation will meet initial costs on a more generous basis. The evident intent in the provisions of s 88 of the Act is partly to relieve the Corporation of the cost of conducting assessments overseas, and to restrict the class of persons carrying out those assessments to those approved by the Corporation. The answer given by the Corporation to the appellant was brief. It stated: Under Section 88(4), ACC may not make payment to a person outside New Zealand unless the condition of the person has been assessed by a person approved for the purpose by the Corporation. ACC contracted in New Zealand the National Research Bureau, who are based in New Zealand and have no assessors in Australia. Consequently, we must decline to have the assessment carried out in Sydney as requested. - 3 - The appellant's Sydney solicitors protested at the refusal of off-shore assessment and also concerning a refusal to pay costs of physiotherapy. That second question has since been resolved or referred separately for decision. The question of the independence allowance assessment went to review and the Review Officer dealt with it without receiving detailed submissions. The Review Officer correctly considered that's 84(4) governed the cost of the initial independence allowance assessment. She confirmed the Corporation's decision but asked the Corporation to consider the question of contracting assessors to carry out independence allowance assessments overseas. On the hearing of this appeal, submissions were received from Christchurch solicitors on behalf of the appellant. Some of the submissions were prepared by a barrister in London. The submissions referred to Article 2(3)(a) of the International Covenant on civil and Political Rights ratified and acceded to by the Government of New Zealand on 28th December 1978 providing: "Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms .. are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.' The import of the appellant's submission was that the Corporation's failure to approve an assessor in Sydney deprived the appellant and other persons of an effective right because the cost of travelling to New Zealand for assessment would significantly reduce the benefit of the remedy. I am unsure whether the appellant is a person whose rights or freedoms have been violated. The argument is that she is deprived by s 14 of the Accident Rehabilitation and Compensation Insurance Act 1992 of any remedy against a person at fault for causing the injury for which she seeks compensation under the Act. The argument seems to involve the proposition that a right of recourse against the alleged wrongdoer, which she might have enjoyed under the common law, has been removed by statute and thereby "violated". Otherwise, the submission may be aimed at the accident itself as a violation of her rights. A more appropriate application of the covenant may be that the combined effect of s 14 and the Corporation's refusal to make provision for adequate assessment for compensation is a violation of rights by persons acting in an official capacity within the Corporation. The argument that the state is bound to provide a remedy, and that the remedy must be found in the Accident Rehabilitation and Compensation Insurance Act 1992, is an argument that is necessarily complex and which I do not feel able to do justice to on very brief written submissions which do no more than identify the point. In support of the appeal, the appellant filed an affidavit sworn by her on 10 September 1996 concerning the circumstances of the accident and of her return to Australia and describing the treatment that she received in Australia and the progress of her recovery. She said that she continued to experience restriction of movement in her neck and back, headaches, irritability, lethargy, weight gain and depression. She suffered night pain in both shoulders, more so in the right and pain in the left arm radiating to the left hand. She was not able to do as much gardening and housework - 4- as she had previously done and was no longer able to enjoy netball, tennis and sailing. The appellant had been advised that she had a permanent impairment of 24% of neck function and lesser percentages of right and left arm function. There has been no argument about the meaning of s 88. The question on appeal concerns the Corporation's responsibility. The respondent has not provided any further information in response to the Review Officer's suggestion that consideration. be given to approval of persons able to perform an independent allowance assessment in Sydney. The respondent, through counsel, submitted that in the absence of any arrangement for an overseas contracted assessor the Corporation's decision is correct. In meeting the argument on this appeal I think that the Corporation needs to go further than that and explain whether it is reasonable not to approve a person able to carry out an assessment in Sydney. There are two questions first, whether the Corporation is bound to provide an assessment in Sydney, and secondly, if it is not bound to do so, whether it has acted reasonably in failing to provide an assessment in Sydney. The Corporation has not adequately addressed the question why it cannot provide assessment for the appellant in Sydney. It may well be that the National Research Bureau is capable of conducting an assessment in Sydney through the employment of an agent or by using modern communications technology. There is no information on the file from the National Research Bureau. The only indication of the difficulty is in the Corporation's letter to the appellant. An appropriate step would be to allow the appeal and refer the matter back to the review officer to decide whether the Corporation has provided sufficient reason for withholding approval under s 88(4). For completeness, it is noted that the appellant's affidavit lodged for the appeal referred to physiotherapy costs, lump sum compensation and compensation for clothing damage. The question of physiotherapy costs has not been determined by the Corporation and it does not arise on the appeal. The Corporation will no doubt have to make a determination then review and appeal rights will follow. There is no lump sum compensation available in relation to accidents which occurred in 1995. There is no provision in the Act for compensation for property damage connected with personal injury. The appeal is allowed on the basis that the Corporation has not provided reasons. The question of reasonableness is referred back to the Review Officer for decision after hearing further evidence or submissions. The appellant appears to have incurred some legal costs and will have costs of $400 on this appeal. DATED at WELLINGTON this 14th day of July 1997 D A Ongley District Court Judge