Sampson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 6 /96 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 DENIS JOHN SAMPSON 49 / 94 / 124 4 Appellant (Appeal No. DCA 203/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent Mr K Reid for appellant Mr A D Barnett for respondent DECISION OF JUDGE D A ONGLEY By consent of the parties this appeal will be dealt with on the papers. Both parties have filed written submissions and time has been allowed at the request of the appellant for the Corporation to consider a "wrongful action" claim. The appeal concerns a claim for industrial deafness under the Accident Compensation Act 1982 when the claim for compensation was first made to the Corporation after the commencement of the Accident Rehabilitation and Compensation Insurance Act 1992. The problem that faces the appellant is that the date of accident is deemed to be the date on which the claim is lodged. If the view of the respondent and the Review Officer is correct, then the appellant is unable to obtain any of the benefits of claiming under the 1982 Act for the reason that the accident is deemed to have occurred after the 1982 was repealed and when the 1992 Act was in force. The claim was lodged on 25 September 1992 during the period of grace for lodging claims under the former Act. It is only the particular provision - 2 - determining the date of injury in cases of industrial deafness that prevents the appellant's claim being considered by the Corporation. Section 29(3) of the 1982 Act states: (3) When a person suffers from industrial deafness he shall be deemed to have suffered personal injury by accident (and if he is then engaged in any employment) arising out of and in the course of his employment and happening on the date on which he makes a claim in respect thereof under this Act or the date on which he last leaves an occupation in which there is a particular hazard of contracting deafness, whichever is the later." In similar circumstances in Scott v ARCIC 84/94, 31 October 1994, I decided that the deemed date of personal injury applies with the effect of defeating a claim for personal injury by industrial deafness made after the repeal of the 1982 Act and before 1 October 1992. The appellant submitted that because of the historical approach industrial deafness claims are in an unusual category and that the 'date of accident', because of the insidious nature of the onset of deafness and the ongoing processes cannot be fixed with precision; it has to be fixed in a deemed statutory manner by either taking the date of leaving employment in which exposure occurred or the date of the claim whichever is the later. Appellant's counsel submitted that the phrase 'whichever is the later' is designed for the benefit of the employee who discovers on leaving a particular employment that there has been an occurrence of deafness; that the purpose of the provisions in s 29 were to provide some flexibility as to time limits and endeavour to ensure that time bars for making claims did not operate against the interests of someone who discovered that deafness existed some time after leaving a particular employment. He submitted that the intent of the Accident Compensation scheme is to cover all accidents and it could not have been the intent of the 1992 transitional provision to artificially exclude from consideration a group of claims which validly exist but which have a peculiar deeming date. Counsel submitted that the onset of deafness occurred between 1978 and 1991. He submitted that in normal circumstances the date of leaving the employment would have been the date of the accident; that the claimant's rights are 'inherent' and exist at the date of leaving employment but are crystallised and confirmed on the lodgement of the claim; because of the wording of the transitional provisions the ameliorating and remedial provisions in s 29(3) quite startlingly become a bar to success. He submitted that in relation to industrial deafness claims there has either been a drafting error or a legislative oversight and if it was the intention of the statute to take away rights which already existed then the intent should be spelt out with the utmost precision and clarity. There is some justice in the appellant's argument, but it asks for a purposive interpretation which cannot be imposed on the statute without doing violence to the words used in s 29(3) of the 1982 Act. For the purpose of deciding the acceptability of the claim the 1982 Act has to be read as if it had not been repealed. For industrial deafness claims where the deemed date occurred before 1 July 1992 it is intended that s 29(3) continues to fix the date of happening of the injury. There is no logical argument to read s 29 without reference to subs (3) and the practical - 3 - difficulties that would follow are obvious. The appellant is forced to contend that a different construction applies when the deemed date falls between 1 July 1992 and 1 October 1992 because Parliament could not have intended a result that does not confer the period of grace for industrial deafness claims. In my view it is not clear that Parliament could not have intended such a result. The purpose of the period of grace was a transitional provision giving some further opportunity to make claims that would qualify for kinds of compensation that would be denied under the new Act. The final cut off date was arbitrary, having no regard to the age of the claim or the circumstances of the claimant. Industrial deafness claims also suffered a cut off date with no regard to the age of the claim or the circumstances of the claimant. Possibly, even probably, the unusual provisions relating to the deemed date of onset of industrial deafness claims were not considered by Parliament. But the result that followed on the plain wording of the Acts was that they did not obtain the benefit of the additional period enjoyed by other claimants who suffered accidents other than industrial deafness accidents. In principle they were not treated differently, but in practice they had to be lodged three months earlier to obtain benefits under the 1982 Act. That could not be regarded as a result contrary to the purposes of the 1992 Act. The transitional provisions do not embody the purposes of the Act, but in fact contain exceptions to the full operation of the Act and formulas for dealing with claims that originate under the old Acts but continue under the new Act. Put in another way, the three month extension of time for existing claims is not one of the purposes of the ststaute, but is merely an arbitrary bridging mechanism. Industrial deafness claims unfortunately did not gain the advantage of the exception available to other claims during a particular three month period, but that does not produce a result contrary to the purposes of the Act. For those reasons I reach the came conclusion as in Scott and the appeal is dismissed. DATED at WELLINGTON this 6- day of 1/4,4k'ch 19% D A Ongley District Court Judge