Rule v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 1 19 /98 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 JOANNA RULE DCA 386/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE MJ BEATTIE ON THE PAPERS I have received submissions from the appellant and the respondent in this appeal with a request that I now issue a decision on the papers. The issue is whether the appellant is entitled to lump sum compensation. On 8 December 1995 the appellant lodged a claim for cover under the Act in respect of sexual abuse which is said to have occurred over a two year period from 1976. At the time when this abuse is said to have started the appellant was only 4 years of age. 2 The claim for cover was accepted and the appellant made claim for a lump sum payment under the provisions of the 1982 Accident Compensation Act. That claim for lump sum was declined by the Corporation on the basis that it had not been made within the statutory time frame set forth in the Transitional Provision of section 147(1) of the 1992 Act. It was the appellant's contention both to the Corporation and to this Court that her circumstances should allow for further time for her to have brought her claim having regard to those circumstances. She contends that it is totally unjust that the statutory time frame should disentitle her when, at the time that time frame was counting down she was still in a state of denial and not in a sufficient mental state to be able to discuss her trauma with anyone. It is only when she commenced to receive counselling that she has been able to bring the matter out in the open as it were, and make a her claim under the Act. This Court can have the greatest sympathy for the appellant and for her circumstances which are totally understandable, however the provisions of section 147(1) and (2A) are clear and there is no discretion vested in the Corporation to extend the rigid time frame that the statute provides. There is no dispute that the appellant had not lodged her claim for cover by the 30th of September 1992, nor had the Corporation received a written application electing to seek lump sum compensation by 31 March 1993 Those dates were the cut-off dates provided for in the Transitional Provisions of the new act which preserved some limited entitlement to lump sum cover to persons who had suffered personal injury by accident during the time that the 1982 Act was in force. That cut-off date has now passed and persons who would formerly have been entitled to lump sum payments are 3 now equally entitled to assessment for an independence allowance, which has taken the place of lump sum payments. - It is noted that the appellant has been assessed and has been granted an independence allowance and that is the extent of her entitlements in that particular category as provided by the 1992 Act. The Act makes no allowance for the fact that during the substantial period of time when the appellant could have made a claim she was both in a state where she did not wish to address the problem and secondly she was a minor. The Accident Compensation Act 1992 takes no account of the fact that a person's rights may be lost even though the time within which they are lost may be when they are legally a minor. Such was not the case under the common law or indeed under the Limitation Act 1950. Those principles do not apply to claims under the ARCI Act 1992. Accordingly then, for the reason that the appellant's claim for lump sum was made outside the statutory time frame provided by the Act, the decision of the Corporation to decline her request was correct. This appeal is dismissed. DATED at WELLINGTON this 4 day of June 1998 kathy MJ Beattie District Court Judge JR.doc(gm)