Cook v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 40/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND 47 95/ 0477 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DESMOND WILLIAM COOK of Wanganui Appellant (Appeal No. DCA 38/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON I have received submissions from the appellant and from Mr J K Birks for the respondent with the request that I issue a decision on the papers. The issue before me is whether the appellant is entitled to a survivor's grant pursuant to s.56 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant and his deceased wife were married on 2 February 1986. As a result of a domestic incident, the appellant's wife was arrested and charged with assault on the appellant. Following that incident, the appellant's wife left their home and moved with their children to a Women's Refuge where she was living until her death on 27 May 1994 in a motor accident in which two of their children were also killed. Prior to his wife's death the appellant obtained a tenancy order whereby he became the sole tenant of the matrimonial residence and he also obtained a non-molestation order and a non-violence order against the deceased. Those orders were made on 19 May 1994. 2 The appellant made an application to the respondent on 14 June 1994 for a survivor's grant and on 1 August 1994 the respondent notified the appellant that he did not qualify for a survivor's grant pursuant to s.56 of the Act because he and his wife were living separately. The appellant applied for a review of that decision, but the review officer upheld the respondent's decision. The appellant has appealed that decision and in his notice of appeal has stated that he considers that he is entitled to the grant because he and his wife were still married at the time of her death. In his submission to the Court the appellant has stated that the only reason he and his wife were separated at the time of the accident was that he had obtained the tenancy, non-violence and non-molestation orders against her, but that he was then in the process of applying for custody of the children. He submitted that he and his wife were still married and that he was paying some of her bills. He stated that his wife was also giving him money on occasions. The appellant submitted that his son had given evidence before the review officer in which he said that he was living with his father and that the appellant had been contributing food and money to his wife when he "possible could". Mr Birks submitted that in terms of the definition of "spouse" under the Act, the appellant does not qualify for a survivor's grant. He submitted further that on the evidence available, the review officer made a finding of credibility which did not support the appellant's contention that he was making financial contributions towards his wife, particularly as his wife was then in receipt of a Domestic Purposes Benefit. The provision for payment of a survivor's grant is made by s.56 of the Act which states: "56. Survivor's grant - A survivor's grant shall be payable in respect of every person who dies as a result of personal injury covered by this Act as follows: (a) To a surviving spouse of the deceased, $4,000 [4296.021, but, where there is more than one surviving spouse, that amount shall be divided equally between them: To each child of the deceased, who has not attained the age of 18 years, $2,000 [2148.02]: (c) To any other dependent of the deceased, $2,000 [2148.02]." The definition of "spouse" in s.3 of the Act is: " Spouse' in relation to a deceased person, means a person - (a) To whom the deceased person was legally married immediately before his or her death; or (b) Of the opposite sex with whom the deceased person was in a relationship in the nature of marriage immediately before his or her death - 3 but does not include any person to whom the deceased person was legally married or with whom the deceased person was in a relationship in the nature of marriage, if they were living apart at the time of the deceased person's death and the deceased was not contributing financially to the person's welfare, unless the parties were living apart principally because of the health, imprisonment, or employment obligations of either of the parties:" (emphasis mine) The evidence discloses that the deceased was in receipt of a Domestic Purposes Benefit which can only be granted if the applicant complies with the provisions of s.27B(2) of the Social Security Act 1964 which states: "Subject to the provisions of this part of this Act, an applicant shall be entitled to receive a Domestic Purposes Benefit if the Director General is satisfied that - (a) the applicant either - (i) is or has been legally married; or (ii) has attained the age of 18 years; and (b) the applicant is caring for a dependent child or children; and (c) the applicant is not living together with her husband or his wife or with the other parent of the child, as the case may be." For the purposes of the Act an applicant is defined in s.27B(1) as being - "(a) a woman who is the mother of one or more dependent children who is living apart from, and has lost the support of or being in adequately maintained by her husband." In a recent appeal regarding a similar application, the respondent's counsel submitted to me that the words "living apart" are the antithesis of cohabitation a submission with which I agree. While this appellant has indicated that he has made some financial contribution towards the deceased's living expenses, the review officer made a finding that he was not satisfied that this had occurred. As the review officer heard the evidence he was entitled to make a finding of credibility and I am not in a position to disturb that finding. It is quite clear from the evidence that the parties were living apart at the time of the deceased's death and the decision of the review officer was correct. 4 While the appellant has asked me to consider various statements from friends and neighbours, I accept what they say, but it does not alter the fact that in order to qualify for a grant under s.56, the appellant had to be residing with his wife in the same home at the time of her death. This was not the situation and accordingly the appeal is dismissed. DATED at WELLINGTON this the day of June 1996 A W Middleton District Court Judge dc38-96.doc(rd)