Letham v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 9/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19/ 94 / 0196. BETWEEN DARREN JOHN LETHAM of Mosgiel Appellant (Appeal No. DCA 40/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of February 1996 APPEARANCES Mr M Guest for the appellant Mr TP Cleary for the respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to lump sum awards under the Accident Compensation Act 1982. The circumstances surrounding the appeal are unusual. Between 1986 and 1992 the appellant was the subject of sexual abuse by his stepfather. In May 1992 when aged 16, the appellant lodged a complaint with the New Zealand Police and supported this with a full statement. On 10 June 1992, the appellant's solicitor wrote to the respondent at Post Office Box 805, Dunedin, enclosing a C1 (b) Advice of Injury Form. On 23 March 1993, the appellant's solicitor wrote to the respondent inquiring as to the progress of the appellant's application and at the same time submitted a form of election for lump sum compensation. This letter 2 was again posted to Post Office Box 805, Dunedin. On 1 June 1993, the appellant's solicitor wrote a further letter to the respondent at its correct Post Office Box number 882, Dunedin. The respondent replied to that letter advising the solicitor that it had no record of the appellant's claim nor of the previous letters to which he referred. On 21 July 1993, the appellant's solicitor submitted a claim form completed by the appellant being an M46 Notice of Injury Form signed by the appellant's general practitioner. The respondent accepted that sexual abuse had occurred and on 24 June 1994 advised the appellant that his claim for cover and treatment expenses had been accepted under the 1992 Act. The appellant applied for a review of that decision which was declined. Mr Guest has submitted that there is no doubt that the appellant had been sexually molested by his stepfather between 1985 and 1992 and that this would have entitled him to cover under the Accident Compensation Act 1982. Mr Guest conceded that the Advice of Injury Form submitted on 10 June 1992 had been in a letter which, while addressed to the Accident Compensation Corporation, included the wrong Post Office Box number and that the subsequent letter on 23 May 1993 submitting the written election form was also incorrectly addressed to Post Office Box 805, Dunedin. Mr Guest submitted that the circumstances make this appeal unique in that it was not a case in which the applicant had failed to take the proper steps to file a claim. He submitted that all the correct procedures had been undertaken with the Police and the forms completed, but unfortunately they were mistakenly addressed to the wrong Post Office Box number. Mr Guest submitted that as the Accident Compensation Corporation in Dunedin is a well known organisation, it could be assumed that a person receiving the correspondence in the incorrect Post Office Box would have forwarded it on and that presumably it has been lost within the respondent's office. He submitted that this presumption should follow because the correspondence has not been returned through the Post Office to him. He has also submitted that while the appellant's claim had been submitted before 1 October 1992, it could be accepted that he had made a written election to receive lump sum compensation other than the independence allowance. In a further submission Mr Guest stated that the notice board at the respondent's office had indicated that in some circumstances the respondent was prepared to waive the strict interpretation of s.147 and that the respondent should have administratively done so in this case. Mr Cleary submitted that the issue falls to be considered under ss. 135 and 147 of the Accident Rehabilitation and Compensation Insurance Act 1992. Under s.135(3) a person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1982 before the Ist day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992, shall have the acceptability of the claim 3 determined under the Accident Compensation Act 1982 as if it had not been repealed. Section 147 then states: "147. Compensation for non-economic loss - (1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 but has not received that compensation and makes written application for that compensation before the 1st day of April 1993, that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act. (2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and - (a) That person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and (b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered on the 1st day of July 1992 - that person shall be entitled to elect in writing, not later than the 31st day of March 1993, to receive either his or her entitlement under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. (2A) For the avoidance of doubt, it is hereby declared that, for the purposes of subsection (1) and (2) of this section, no person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of the personal injury by accident had been lodged with the Corporation before the 1st day of October 1992. (3) Subject to section 148 of this Act, if - (a) No payment has been made in respect of personal injury by accident under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982; and (b) No payment is made under subsection (1) of this section; and No election is made under subsection (2) of this section - 4 the person shall be deemed to have elected to receive an independence allowance under and subject to the conditions of section 54 of this Act as if the personal injury by accident was personal injury that had been suffered on the 1st day of July 1992. (4) Where any election to receive an independence allowance is made under subsection (2) of this section, no payment shall be made under subsection (1) of this section." Mr Cleary submitted that on the basis of the decision of Judge Imrie in Black v ARCIC (66/94), there is no entitlement to lump sum compensation under ss.78 or 79 of the Accident Compensation Act 1982 unless a claim for personal injury by accident is lodged before 1 October 1992. He submitted that the first intimation to the respondent of this appellant's claim was Mr Guest's inquiry on 1 June 1993. He submitted that in terms of s.135(3) "lodged with the Corporation" requires that the claim itself must physically be with the respondent or that the respondent must have actual knowledge of the claim prior to 1 October 1992. In reply to Mr Guest's submission regarding the policy bulletin on the respondent's notice board, Mr Cleary submitted that this step had been taken to allow payments to be made in cases where there was fault on the part of the respondent. He submitted that this policy had been adopted in order to avoid possible wrongful action claims where the respondent itself had been at fault in dealing with claims. Mr Cleary submitted that in relation to the written application and election notice, it has been consistently held by the Court that where a written application or election for lump sums has not been made by 31 March 1993, the claimant is deemed to have elected the independence allowance. He submitted that in this case nothing was heard from the appellant until after 31 March 1993. He referred to the decision of Her Honour Judge J G Lovell-Smith in Hussain (152/94) in which she held that an Advice of Injury Form cannot be read as a written application for lump sum compensation under ss.78 and 79. Judge Lovell-Smith said: "In the absence of an application or election for s. 79 compensation the appellant is deemed to have made an election for the independence allowance and thus one is not without entitlement". While on the face of it this appellant had taken all the necessary steps to put himself in the position to claim lump sum awards under ss.78 and 79, the incorrect address on the correspondence has resulted in the applications not being received by the respondent within the time stipulated in the legislation. The Court has held in numerous decisions that there is no discretion to go outside the strict wording of the legislation and I do not accept Mr Guest's submission that I should deem the application to have been lodged because, even though they were incorrectly addressed, the name of the Corporation appeared on the letters and it is a well known organisation. I consider that the words "lodged with the Corporation" must 5 be taken in their ordinary meaning and that this is that the application must be physically lodged with the Corporation on or before the appropriate date. The appeal is dismissed. DATED at WELLINGTON this day of MARCH 1996 A W Middleton District Court Judge dc40-95.doc(rd)