Mohi-Rudolph v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 198/ 99 IN THE DISTRICT COURT HELD AT AUCKLAND 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 H. MOHI-RUDOLPH DCA 540/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 22nd day of June 1999 APPEARANCES: R Haka for appellant D. Fotiades for respondent ORAL JUDGMENT OF JUDGE JEREMY DOOGUE The claimant in his case sought payment of costs of the appellant's attendant care while she was travelling overseas. The initial hearing of this matter was on 6 October 1998 before a Review Officer at Auckland. The facts contained in that review decision are not in dispute. The applicant is an infant who was born in May 1996 with brain damage as a result of asphyxia. She needs care by way of attendance and the Corporation has authorised payments for attendant care. However in the period 11- 18 May the child's mother went outside New Zealand and the child applicant went 2 with her. As well the child's aunt was taken along to provide attendant care for the applicant and it is because the Corporation declined to make the payment requested that the initial review was brought. The Review Officer upheld the Corporation's stance and in general terms relied upon section 88 of the Accident Rehabilitation & Compensation Insurance Act 1992 as justifying the Corporation's decision. Section 88 provides as follows: 88. Payment to persons outside New Zealand (1) Compensation based on weekly earnings, independence allowances, and survivors' grants shall be paid in accordance with this section to persons who are outside New Zealand (2) No payment shall be made under this Act in respect of any treatment, service, rehabilitation or rebated transport costs incurred outside New Zealand unless required or permitted by regulations made under this Act. I think it is fair to say that the only regulation which seems to throw any light on this .. . .. . - matter is that set out in the clause there in the complex personal injury regulations. Regulation 16 provides as follows: 16. Limits on content of social rehabilitation programme A social rehabilitation programme prepared under these Regulations shall not provide - (a) For the purchase of a motor vehicle or modification to any motor vehicle or residential premises except as permitted by section 26A(4) of the Act; ( 6 ) For social rehabilitation outside New Zealand. Dealing first of all with the literal wording of the Act, I come to the conclusion that a payment of the kind specified here would not seem to contravene section 88(2). The focus in the section is on costs "incurred outside New Zealand". That is not the same thing as payment for services performed outside New Zealand. It seems to me that the section is directed at the place where liabilities are incurred. On a purely commercial view of matters it seems to be the case that if (A) and (B) agree within New Zealand that (B) will provide services to (A) in return for which (A) will pay a certain amount then the liability is incurred when the contract is made in New Zealand, or alternatively a debt arises which is payable in New Zealand once the promised performance under the contract has been completed. For that reason a liability for the cost of the service would be incurred inside New Zealand even although the service 3 could impart if occurred outside New Zealand. Apart from these considerations, I note that some of the service may well have been incurred within New Zealand for instance, going to the airport, looking after the child within New Zealand airspace on the outward journey and the return journey. To, resume, the application of ordinary commercial law principles would mean the liability was incurred within New Zealand. I then consider what if any reason there is to depart from that and interpret such an interpretation. One can understand that there would be very good reasons why the Corporation would not want to get involved in reimbursing costs incurred outside New Zealand and why there should therefore be a policy against such payments being allowed for. The possibility of supervising payment of those services, litigating any disputes concerning them and the like meaning it would unattractive for that to occur outside New Zealand. These considerations are not inconsistent with my interpretation in favour of which emphasises not where the services are provided but where the liability is incurred. There was reference made by Ms Fotiades to Regulation 16. Ms Fotiades very properly conceded that if I took the view that I have already foreshadowed in this judgement so far then Regulation 16 would not preclude a payment of the kind contemplated being made. Rather Ms Fotiades said that I could have regard to Regulation 16 as giving an indication of general policy and that indication should be taken into account by me in interpreting section 88. I am not sure that in fact Regulation 16 has anything to offer when it comes to interpreting section 88. It seems to be concerned with agreed social rehabilitation programmes and providing that no component parts of that programme should provide for social rehabilitation outside New Zealand. Whether or not settling a social rehabilitation programme is the same thing as attending a child on a trip across the Tasman to Australia and return is very doubtful in my view. Whatever the effect of Regulation 16 is it does not in my view overcome what seems to be the plain meaning of section 88. For those reasons I would allow the appeal and the decision of the Review Officer of 6 October 1998 is set aside. 4 It will therefore be necessary for the Corporation to consider the claim afresh and to decide on matter such as the quantum of the amount claimed. The appellant has been successful and would seem to be entitled to costs, those I fix in the sum of $500. DATED at AUCKLAND this 16 day of July 1999 Jeremy Doogue District Court Judge -- -