Kennedy v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 130 /96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN GRAHAM LAWRENCE KENNEDY of Feilding Appellant (Appeal No. DCA 62/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of September 1996 APPEARANCES H J O'Connell for appellant D Tui for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to assistance for the purchase of a motor vehicle under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Purchase and Modification of Vehicle) Regulations 1992. 2 The appellant suffered personal injury by accident on 26 October 1993 when he hit his right elbow on a concrete post while mowing lawns. The respondent accepted that the appellant was entitled to cover and he received weekly compensation from 3 November 1993 and an independence allowance from 13 weeks after the date of the accident. On 18 May 1995 the appellant submitted a claim for assistance for a purchase and modification of a motor vehicle. A report from Dr Brougham confirmed that the appellant was unable to drive because of the result of the accident and would require a modified vehicle to enable " him to do so. The respondent arranged for a driving assessment to be made and a report was issued in August 1995 which established that in order for the appellant to drive safely and independently he would require a vehicle that had power steering wheel, automatic transmission, a steering wheel spinner and access to all dashboard controls on the left side. The respondent was advised that the appellant had owned a 1985 Holden Royale from February 1995 until it was sold in April 1995. On 10 November 1995 the respondent issued a primary decision in which it stated that the appellant was entitled to assistance for the modification but not the purchase of a motor vehicle. Its decision letter read in part: "As the Holden Royale that you owned from February 1995 to April 1995 had power steering (being one of the recommended features), we are unable to assist you with this cost. We have obtained mechanical advice that it would have been viable to fit an automatic transmission to this vehicle thereby providing you with the other recommended features. We have sought two quotes for this work and our contribution is based on the lower of the quotes received. Please confirm with your case manager once you have made a suitable vehicle selection and payment of $2,130.75 will be made into your account and be paid directly to the person selling the vehicle. The other recommended features in the driving assessment are a left sided lights control, left side ignition and steering wheel spinner. The Corporation will meet the costs of these modifications at 100% after you have made your vehicle selection, please obtain a written and binding quotation for these modifications and submit these to your case manager." The appellant applied for a review of that decision. There is no argument that the appellant had owned the 1995 Holden Royale between February 1995 and 3 April 1995 and that that vehicle had power steering but a manual transmission. It had apparently been sold because the appellant was in financial difficulties. After the sale of the Holden Royale, the appellant's wife purchased a 1982 Honda Accord. The respondent obtained advice from mechanics from which it was satisfied that the Holden Royale could have been modified to meet the standards fixed by the driving assessment. 3 In her decision, the review officer noted that the appellant's principal argument was in relation to the words "previously owned" as contained in regulation 7(1)(b) of the Regulations to which I have referred. She concluded that the Corporation's decision was correct. It is against that decision from which the appellant now appeals. Regulation 7(1) states: "(1) The Corporation shall not, and an exempt employer shall not be required to -- (a) Contribute to the purchase of a vehicle where a vehicle owned by the claimant, or a person proposing to transport the claimant, is suitable for modification in order for the claimant to achieve independence in daily living; or (b) Contribute to the purchase of a vehicle, if a vehicle previously owned by the claimant or a person proposing to transport the claimant was suitable for modification in order for the claimant to achieve independence in daily living, and that vehicle was disposed of by the claimant or that person after the date the claimant is deemed to have suffered a personal injury." Mr O'Connell's principal argument is in relation to the phrase "previously owned". He raised the question as to whether the words referred to a vehicle owned prior to the appellant's personal injury or prior to the date of the application for assistance. He submitted that the review officer was wrong in her decision because in his submission, the correct interpretation of the words was that it referred to a vehicle owned before the date of the personal injury. He submitted that subparagraph (b) of the Regulations permitted two possibilities being that the appellant had owned a vehicle before personal injury and disposed of a vehicle after the personal injury. Mr Tui submitted that the words in the Regulation are clear and unambiguous and merely refer to a vehicle owned by the appellant at a time after the accident which was disposed of prior to the application for assistance. I agree with Mr Tui's submission. While Mr O'Connell made lengthy submissions, I do not consider that they are relevant to the interpretation of the Regulation which to my mind is quite clear. If a person suffers injury as a result of an accident and in order to achieve independence in daily living he requires to purchase or obtain modification of a vehicle and he has a vehicle which is capable of such modification but disposes of it prior to making the application for assistance then the respondent is proscribed by the Regulation from giving that assistance. I do not see that it is necessary to consider whether or not he owned a vehicle prior to the accident. The sole issue addressed by the Regulation is whether, having been impaired in an accident, the applicant is unable to drive without a modified vehicle and that he requires such in order to achieve independence in daily living. However, if after the accident and before making an application for assistance to purchase or modify a vehicle, the applicant owns a vehicle which is capable of modification to meet his needs and he sells that vehicle, then his application for assistance must be declined. I do not consider there is any ambiguity in the wording of the Regulation. The evidence before this Court is that this appellant did own a vehicle between the time of his accident and his application for assistance and that that vehicle would have been suitable for modification to enable him to achieve independence in daily living. Consequently the decision of the review officer was correct and the appeal is dismissed. DATED at WELLINGTON this 30th day of October 1996 A W Middleton District Court Judge - - dca62-96.doc (nr)