Cook v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 37 19 7 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 DESMOND WILLIAM COOK 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 D A ONGLEY ON APPLICATION FOR LEAVE TO APPEAL This is an application for leave to appeal against a decision delivered by Middleton D J on 7 June 1996 on appeal from a decision of the Accident Compensation Review Officer. The issue on the appeal concerned a claim for entitlement under s 56 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant was separated from his wife who was living, with their children, at a women's refuge establishment. The appellant's wife and two of their children died in a motor accident on 27 May 1994 during a period of the separation. The ground upon which the review officer declined to make a survivor's grant under s 56 of the Act was that the appellant and his wife were living apart and that the appellant's wife was not contributing financially to his welfare. That was a question of fact. On appeal, the Judge confirmed the review officer's decision. No question of law has been identified for the purposes of an application for leave to appeal to the High Court but the appellant wishes to advance a new ground. - 2 - Under s 56 of the Act a separated person is not barred from claiming a survivor's grant where the parties were living apart principally because of the health, imprisonment, or employment obligations of either of the parties. The applicant has raised the question that he and his wife were living apart because of health reasons. In support, he has provided a letter from a senior clinical psychologist of Wanganui Community Mental Health Services to show that he would have been suffering considerable stress. The history indicates that he had been assaulted by his wife. He remained in the family home and was seeking custody of the children of the marriage at the time the tragic accident occurred. It is likely that he would be able to adduce evidence that he was suffering from stress and had been for a period of time even before the separation. There is material to indicate that he may have suffered depression through stress and that was a factor involved in the circumstances of separation. The proposed ground of appeal was not argued before the review officer nor in the District Court, and the applicant would need to persuade the Court that it is in the interests of justice to grant him a rehearing so that the question of separation for health reasons can be considered by the Review Authority. On this application for leave it is necessary for the appellant to show that he has a good arguable case for an appeal directed at a rehearing of his application on a new ground. It is also necessary to consider the reasons why the ground was not advanced in the first place. As the applicant has not been represented, it would be unfair to take too narrow a view of the reasons for failing to advance the particular ground before the review officer in October 1994. I find there is no material to support a grant of leave to appeal on the basis that the appellant would have a good arguable case to obtain a rehearing of his claim. Clearly the separation did not occur principally because of health of either of the parties. Even allowing for the most favourable interpretation of the relevant provision in the Act, a claimant would have to show that the parties were living apart principally because of the health of either of them. It is patently clear that they were living apart because of a breakdown in the relationship leading to violence between them. The effect on the applicant's health may have been a consequence of stress in the relationship but, on the material before the Court, it could in no way be regarded as a principal reason for the parties' living apart. For those reasons the application for leave to appeal is refused. DATED at WELLINGTON this 2 She day of March 1997 D A Ongley District Court Judge