Van Stripriaan v Accident Rehabilitation and Compensation Insurance Corporation

Decision No: 50/94 IN THE DISTRICT COURT DCA No. 71/94 HELD AT AUCKLAND UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 39-94-0341 AND IN THE MA TIER of an appeal pursuant to Section 91 of the Act BETWEEN ELEANOR V ALAS! VAN STIPRIAAN (Estate of Dirk Pieter Van Stipriaan) APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 18 August 1994 Date of Decision: 2 2. September 19q4 Counsel: R.B. Hucker for appellant Pauline Zumbach for respondent RESERVED DECISION OF roDGE R.L. KERR Application for adjournment: Prior to the appeal being called before me, I was advised, that the Corporation was seeking to vacate the hearing on the basis that one of the 2. grounds of appeal was that a decision Smith v Accident Rehabilitation and Compensation Insurance Corporation (District Court, Wellington, DCA 94/93 (Decision 1/94) 10 February 1994 - Judge A.W. Middleton) had been appealed to the High Court. At a meeting held on 25 May 1994 between District Court Judges (including the Chief District Court Judge) and representatives of the respondent's legal services, it was agreed that appeals raising the same issues already subject to appeal to the High Court, should not be set down for hearing, unless the appellant specifically requested an urgent hearing. I was not at the meeting concerned and neither was a representative of the appellant. Because Mr Rucker sought the matter to proceed, and because there are points additional to those raised in Smith for consideration, it seemed to me, I should deal with the appeal. Background to the appeal: In July 1990 Mr Van Stipriaan complained of inflammatory fluid between the lung surface and chest cavity. He was diagnosed as suffering from metastatic adenocarcinoma of the pleura, with the primary cancer site presumed to be the lung itself. Mr Van Stipriaan died on 9 December 1990, his death certificate recording that death resulted from adenocarcinoma of the lung with pleural secondary spread. The cancer of which Mr Van Stipriaan was said to have died, results from among other things, smoking. Mr Van Stipriaan was a smoker. However, he had also worked with asbestos for approximately ten years. Following the issue of the death certificate, specimens of the cancer tissue were sent to Australia where a new diagnosis of the cancer type was 3. made. The new diagnosis found that Mr Van Stipriaan was suffering from mesothelioma. That _condition may be caused by exposure to asbestos. If it had been known in 1990, that Mr Van Stipriaan suffered from mesothelioma, he would have been entitled to cover under the Accident Compensation Act 1982, as the result of an occupational disease or as a work related accident. The Corporation accepts that Mr Van Stipriaan died as a result of his exposure to asbestos, but declined cover on the basis that the claim was not lodged within twelve months of the date of accident, that date being, the date of his death. There can be no dispute, and indeed it appears to be common ground, that prior to Mr Van Stipriaan being diagnosed as suffering from mesothelioma, he had no claim. The Corporation declined the claim made after the correct diagnosis was achieved on the basis that no claim had been made within twelve months of the date of death. That holding, was upheld by the Review Officer. The Jaw: Section 3 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the Act) provides in its relevant parts the following:- "(1) Every claimant for cover under this Act shall lodge a claim in the prescribed form. 4. (2) No claimant shall be entitled to any payment in respect of personal injury unless that claimant has lodged a claim for cover within twelve months after the date on which the personal injury is suffered. (3) .. . (4) .. . (5) . . . (6) H . . . A claim has been lodged on the prescribed form but as previously stated, the Corporation contend that the claim was not made within twelve months after the date on which the personal injury was suffered. Section 135(5) of the Act deals with transitional provisions between claims under the 1982 Act and the Act. Judge Middleton in Smith interpreted the provisions in a way which would enable Mr Van Stipriaan' s estate to make a claim. I followed Judge Middleton in a decision Hill v Accident Rehabilitation and Compensation Insurance Corporation (District Court, Auckland, DCA 82/93 (Decision No. 13/94) 16 May 1994). I accordingly follow Judge Middleton as far as Smith is concerned, but say no more about it as I appreciate, that Smith is under appeal. However, it 1s necessary to consider, Mr Hucker's subsidiary arguments. 5. The limitation period: As is apparent, there is a twelve month limitation period pursuant to s.63(2) of the Act within which a claim must be made. Mr Rucker submits that the common law position relating to the extension or postponement of limitation periods, as a result of mistake or fraud, are applicable in the circumstances. He relies on Halsbury's Laws of England, 4th Edition, Volume 28, paragraphs 916 through to 924. I am doubtful, that Mr Hucker's submissions are correct. Paragraph 916 opens with the words:- 11The statutory provisions for the postponement of a limitation period in case of fraud extend, insofar as they postpone the period on the ground that a right of action has been concealed by fraud, to fraud which was effective for this purpose under former real property statute law and to such conduct, term fraud and equity as suffice for a Court of equity to postpone the running of time until discovery of what had been concealed." The notes to the passage just quoted refer to the Limitation Act 1939. (U.K.) s.26(a), (b). Accordingly, it seems that paragraph 916 is primarily directed towards the Limitation Act provisions relating to fraud and mistake, rather than the common law or equity provisions. Section 28 of the Limitation Act 1950 (the New Zealand Act) says:- 6. "Postponement of limitation period in case of fraud or mistake - Where, in the case of any action for which a period of limitation is prescribed by this Act, either - (a) The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or (b) The right of action is concealed by the fraud of any such person as aforesaid; or (c) The action is for relief from the consequences of a mistake, - the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it: provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against, or set aside any transaction affecting, any property which - (d) *** (e) II . .. Section 28 of the Limitation Act, does not apply to the Act. It is not a question of the Van Stipriaan estate, instituting an action (or the modern word proceeding) against the Corporation. The estate makes a claim pursuant to statute. Accordingly, the ability to extend limitation for fraud or mistake, having been incorporated in statute, I do not consider, the common law· position or indeed equity, can assist. Extension of time for fraud or mistake with a statutory provision having been implemented is limited to what the statute contains. 7. The other matter too, which would suggest that what is contained m paragraph 916, is confined to statute is the reliance in that paragraph on the words II cause of action 11 • I do not think the Van Stipriaan estate has a cause of action. Rather, it either has a right to claim compensation pursuant to statute, or it does not. That right does not seem to me, to be included in the term cause of action, as that term is ordinarily understood. Statutory interpretation: I have had regard to Statute Law in New Zealand - J.F. Burrows and the passage cited by Miss Zumbach. I have also considered Bank of New Zealand v Vagliano Bros (1891] AC 107. Lord Herschell's comments in that case at pp.144-145:- " ... I cannot bring myself to think that this is the proper way to deal with such a statute as the Bills of Exchange Act, which was intended to be a code of the law relating to negotiable instruments. I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural meaning, uninfluenced by any considerations derived from the previous state of the law, and not to start with enquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view." Professor Burrows notes, at p.266, that there has been little consistency in the approach of the Courts in applying the Herschell principle, especially _ in criminal cases. But Lord Herschell's view is of assistance when the limitation provisions of the Act are compared with earlier Accident Compensation statutes. 8. Under the Accident Compensation Act 1972, s .149, a claim was to be made within twelve months but the Commission had a discretion to extend the time for making a claim:- "If the Commission is of the opm1on that it has not been prejudiced in the determination of the case by the failure, whether in the making of enquiries or otherwise, or that the failure was occasioned by mistake of fact, or by mistake of any matter of law other than the provisions of this section, or by any other reasonable cause. 11 Section 98 of the Accident Compensation Act 1982 had a similar prov1s10n. One must assume, that Parliament being aware of the earlier provisions relating to limitation of claims under the Accident Compensation Acts, enacted s.63 in the terms in which it was enacted, for the purpose of limiting the time for making a claim to twelve months, and not giving any discretion to the Corporation to extend that time. It is to be noted, that in the 1972 and 1982 Acts there was no reference made to "fraud" but if a claim had not been made within the statutory period, and that claim was not made as a result of fraud, such fraud might well be encompassed by the words "other reasonable cause". For the reasons I have outlined therefore, I am· not prepared to apply what was described as the common law extension of the limitation period, either on the grounds of fraud or mistake. 9. Should the date of personal injury be the date of actual diagnosis? Mr Rucker submits that the Review Officer was wrong (as indeed was the Corporation) in setting the date of injury as 9 December 1990, and the actual date should be the date of the accurate diagnosis. The Corporation took the view that the date of injury was the date of death, namely, 9 December 1990. In considering this submission it 1s necessary to have regard to a number of statutory provisions. I start with the long title of the Act, which says:- "An Act to establish an insurance-based scheme to rehabilitate and compensate in an equitable and financially affordable manner those persons who suffer personal injury." (Emphasis added). The long title, albeit in brief outline only, indicates the purposes of the Act. The use of the word equitable, would suggest that the Act should be administered fairly and indeed should be interpreted fairly as well. Section 5G) of the Acts Interpretation Act 1924 provides:- "Every Act, and every provision or enactment thereof shall be deemed remedial, whether its immediate purport is to direct the doing of anything Parliament deems to be for the public good, or to prevent or punish the doing of anything it deems contrary to the public good, and shall accordingly receive such fair, 10. large and liberal construction and interpretation as will best ensure the attainment of the object of the Act and of such provision or enactment according to its true intent, meaning, and spirit. 11 In construing a statute or any provision thereof one is encouraged by s.5(j) to be fair, large and liberal to attain the object of an Act. One of the objects of the Act is to compensate injured persons in an equitable way. I do not ignore, but do not need to take further, the words financially affordable conjuncted to equitable. Mr Rucker referred me to s.7 of the Act, and more specifically to subsection (5) thereof. Section 7 relates to personal injury caused by gradual process, disease or infection arising out of and in the course of employment. Subsection (5) states:- 11The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which - (a) The person first received treatment from a registered health professional for that personal injury as that personal mJury; or (b) That personal injury first resulted in the incapacity of the affected person - whichever first occurs · . 11 (Emphasis added). The use of the words 11 that personal injury" in subsection (5) indicate the Legislature foresaw that a person because of gradual process, disease or 11. infection may have a latent condition which would be present for some time but did not initially require treatment. When treatment is first required from a health professional for a particular disorder which is personal injury as defined, the treatment is for 11 that personal injury 11 , and the injury is suffered at the time of treatment. Alternatively, personal injury is suffered when "that personal injury" first resulted in incapacity. On what I have been told, Mr Van Stipriaan was never treated for mesothelioma. He was treated for metastatic adenocarcinoma. Accordingly, with the use of the words "for that personal injury as that personal injury" Mr Van Stipriaan was never treated for mesothelioma and s.7(5)(a) therefore does not apply. The words "that personal injury" used in subsection (S)(b) also have to be looked at in relation to what happened. The personal injury which caused Mr Van Stipriaan' s death was according to the death certificate adenocarcinoma. So it was that condition, which it was assumed caused his death and incapacity. Subsequently, it was ascertained Mr Van Stipriaan had died from· mesothelioma, and not from adenocarcinoma. This occurred some two years after his death. The Corporation have substituted the true cause of death for the misdiagnosed cause and have applied the twelve month limitation period to the actual date of death. 12. But the mesothelioma whilst resulting m Mr Van Stipriaan 's death cannot be taken as resulting in incapacity because at the time of death no-one knew he was suffering from it. Applying s.5G) and interpreting s. 7(5) of the Act in an equitable way, I find "That personal injury" being mesothelioma first resulted in incapacity when it became known it was that condition which caused his death. That being so whilst Mr Van Stipriaan died in December 1990 his incapacity for mesothelioma did not arise until April 1993 when it became known he suffered from that disorder. Conclusion: YOU ARENINA For the reasons I have set out I am of the view that the Corporation and its Review Officer were incorrect. A claim has been made within twelve months of the correct diagnosis having been made and the Van Stipriaan estate, is entitled to compensation under the Act. Mr Rucker seeks solicitor and client costs. Miss Zumbach opposes such a course. As far as costs are concerned, I apply R 45 of the District Court Rules· 1992 and note that costs are in my discretion. I also note that in the Second Schedule, paragraph 38, the total cost of a proceeding · exclusive of disbursements shall not exceed $5,750 unless the Court certifies for the whole costs of the proceeding. 13. I am not prepared to so certify. The Corporation have applied the law as they have interpreted that law to be. I have found against the Corporation and although the Review Officer refused to follow Smith, because Smith did not lie with Corporation policy (which I find somewhat unusual in the sense that there was a determination of the Court which went against Corporation policy so that that determination should have applied) I do not consider I should use that matter specifically to fix costs. The argument took an hour and a half (or thereabouts). Clearly there has been considerable preparation. In all the circumstances I award costs of $1,750 to the appellant. (R.L. Kerr) District Court Judge