Mahn v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No 224 198 IN THE MATTER of the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to s.91 of the Act BETWEEN DENNIS LEONARD MAHN (DCA 250/98) Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD ON: 2 October 1998 APPEARANCES: D L Mahn in person D Tui Counsel for Respondent JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the provisions of s. 142 of the Act, as amended by s.43 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No 2) 2 1993, can have retrospective effect thereby entitling the Appellant to weekly compensation for the period 1 July 1992 to 30 June 1993. Background The Appellant was a territorial member of the RNZAF band. On 31 January 1990 he was playing the trombone in the band during a march up Queen Street as part of the Whitbread Yachts parade. A bandsman ahead of him suffered a heart attack and collapsed. During the ensuing confusion the Appellant's trombone was knocked against his teeth causing damage to and loss of teeth. At the time of the accident the Appellant was aged 65 years, he being born on 13 June 1924. The Appellant lodged a claim in February 1990 and received reimbursement in part for dental treatment and also lump sum awards under s. 78 and s. 79 of the 1982 Act. Initially the lump sum offered to the Appellant was deemed by him to be insufficient and he took that decision to the Accident Compensation Appeal Authority where the award was increased. During the course of the hearing of that appeal the Appeal Authority's Chairman, the late Mr B H Blackwood, observed that since the accident the Appellant had lost income from his part-time employment as a band member and that he ought to be entitled to weekly compensation. It was that observation which first caused the Appellant to believe he had an entitlement to weekly compensation, he previously having been advised by employees of the Corporation that because of his age he would not be so entitled. The factual position is not in dispute, that because of the accident the Appellant was not able to continue as a band member. Because of the loss of his teeth, he was unable to play the trombone. In January 1995 the Appellant made application for weekly compensation and that claim was duly considered and granted. The Appellant was granted weekly compensation for 3 the period from 7 July 1990 to 1 July 1992 and from 1 July 1993 to 13 June 1994 - being the date that the Appellant turned 70 years of age. Thus there was a period, namely 1 July 1992 to 30 June 1993, when it was determined that there was no compensation payable and the reason given by the Corporation for that state of affairs was that at the time when such compensation would have been payable the transitional provisions of s.142, as originally enacted in the 1992 Act, were in force. That section provided that no compensation would be payable to any person who had obtained the National superannuateon qualification age unless that person had made an irrevocable election not to receive National superannuateon in respect of any period for which that person was entitled to receive compensation. That election was required to be made before 1 October 1992 or within one month of the attainment of National superannuateon qualification age, whichever last occurs. It was the Corporation's contention that the Appellant had made no such irrevocable election before 1 October 1992 and therefor for the period that that provision was in force no compensation could be paid. That section was repealed by the provisions of the Accident Rehabilitation and Compensation Insurance Amendment (No 2) Act 1993 which provided that compensation should not cease to be payable, on account of age, until the close of 30 June 1997 or at the age at which it would have ceased to be payable under the 1982 Act, whichever first occurs. Under that 1982 Act the Appellant's compensation would have ceased when he attained the age of 70 years, namely on 13 June 1994. The Appellant sought a review of the decision not to pay compensation for that one year and after considering the statutory provisions the Review Officer ruled that the amending provision was not retrospective and therefore there was no power under the Act for the Corporation to make payment for that year. In submissions to this Court the Appellant pointed out that as he was not aware of his entitlement to weekly compensation, because he had been told he was too old, he could not make an election as was required by the Act. He therefore submitted that as soon as his entitlement had been established he was in a position to make that election and that he should not be disadvantaged because of circumstances beyond his control. Mr Tui, Counsel for the Corporation, submitted that the Corporation's decision was correct and that s. 142 as amended by 1993 amendment could not be construed as being retrospective in operation and that the law that was applicable for the period 1 July 1992 to 30 June 1993 did not allow the Appellant to receive weekly compensation if he had not made the irrevocable election that was required. Counsel referred to the decision of His Honour Judge Middleton in Harris (36/93) which was authority for the proposition of that despite the perceived unfairness s. 142 is not retrospective and cannot assist the Appellant's claim. Decision There is no dispute that as at 1 July 1992 the Appellant had attained the National superannuateon qualification age. That age for this Appellant was 60 years as he was born before 1 April 1932 and this is so stipulated in s.3 of the Social Welfare (Transitional Provisions) Act 1990. Thus in accordance with the provisions of s. 142 of the 1992 Act as originally enacted, the Appellant being notionally a person who was entitled to receive compensation pursuant to s. 138 of that Act, was required to make an irrevocable election not to receive National superannuateon in respect of the period for which he was entitled to receive compensation before 1 October 1992, if he wished to receive weekly compensation. 5 Section 142 was repealed and a new section substituted by s.43 of the Accident Rehabilitation and Compensation Insurance Amendment (No 2) Act 1993. That Act states that "it shall come into force on the Ist of July 1993". The Amendment Act in s. 1(2) states that there are some exceptions to the Ist July 1993 as being the date the Act comes into force or is deemed to have come into force. Those sections which are specifically stated to be otherwise state that the particular section in question "shall be deemed to have come into force on Ist of July 1992". Thus there are specific provisions of that amendment Act which are stated as having retrospective effect but s.43 is not one of those sections so stated. In order for the Appellant to be successful and to be entitled to weekly compensation for that year 92/93, s. 142 as amended must be found to have retrospective affect. There is a general presumption that a statute is not intended to have retrospective operation unless the legislature has clearly spelled out its intention that the Act should be so. It is clear that Parliament's intention was that only certain provisions of the Amendment Act were to have retrospective effect and to suggest that where there is express provision for retrospectivity, there can also be in other provisions where the section is silent, an implied application of retrospectivity goes against the basic principles of statutory interpretation. Furthermore it offends the provisions of s. 10(A)(3) of the Act's Interpretation Act 1924 which states: "Where an Act provides that certain provisions there of are to come or shall be deemed to have come into force on a day other than a date of assent of the Act, 6 the remaining provisions of the Act shall be deemed to have come into force on the date of assent of the Act." Thus I find the legal position is quite clear that the amended provision of s.142 cannot be retrospective and apply to a date earlier than 1 July 1993 and therefore because the Appellant did not make an irrevocable election within the time specified in s. 142 as originally enacted, he had no entitlement under that section to receive weekly compensation for the time that that section was in force. Accordingly the Corporation's decision to deny the Appellant weekly compensation for that one year was correct and this appeal must be dismissed. DATED at Wellington this 20 day of October, 1998 M J Beattie District Court Judge RS/A:MAHN.DOC