Newport v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT ROTORUA 5 / 96 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 57 / 94/ 3061. BETWEEN JOHN MILTON NEWPORT Appellant (Appeal No. DCA 266/94/) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of October 1995 APPEARANCES Mr S Lance for appellant Mr T P Cleary for respondent DECISION OF JUDGE D A ONGLEY This was an appeal against refusal of benefits under the Accident Compensation Act 1982. The appellant suffered infection of Hepatitis C from a blood transfusion during treatment following open heart surgery in 1990. The infection was not detected and the appellant did not file his claim for cover until 11 August 1993. The last date for lodging claims under the 1992 Act was 31 October 1992. The benefits that would have been available to the appellant if he had been able to lodge his claim under the 1992 Act may be more valuable in some respects that those available under the 1992 Act, particularly the lump sum compensation benefits. It was impossible for Mr Newport to have lodged his claim before 1 October 1992 because his injury had not been diagnosed. The Review Officer correctly confirmed the Corporation's decision because he considered there was no provision for a late application to qualify for benefits under the 1982 Act. The reasons for Mr Newport's dissatisfaction with that - 2 - outcome are obvious because his claim has been defeated by a change in legislation that occurred before he discovered that he had suffered an injury. The appeal was set down for hearing on 9 October 1995. Before the hearing Mr Lance asked for the hearing to be adjourned because Mr Newport wished to attend personally but was undergoing treatment and could not appear in Court on 9 October. I did not allow the case to be removed from the list because no reasons could be advanced for the need for the appellant to be present at the hearing of the appeal. The appeal turns only on the proper interpretation of the Accident Rehabilitation and Compensation Insurance Act 1992 and there is no need for further evidence. I regret to say that the question on appeal is one that is well settled by a clear line of authority from previous appeal decisions under the Act so nothing could possibly be achieved by adjourning the appeal. The 1982 Act was repealed by the new Act. Claims available under the 1982 would have lapsed if it were not for $135 of the Act which states: 135. Relationship of this Act and former Acts - (1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the Ist day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act. (2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982. (3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992 and who had lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed. So by subs (1) the appellant would have retained cover under the new Act if his claim had already been accepted under the 1982 Act and by subs (3) he could have had the acceptability of his claim determined under the old Act if he had lodged a claim by 1 October 1992. If he had done so then subs (4) would have applied as follows: (4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act. It was subs (4) that enabled a continued entitlement to some of the the benefits that were available under the old Act even though that Act had been repealed. Claimants who had suffered injury but who had not claimed by 1 October 1992 were able to claim under the new Act subject to subs (5) which limited those claims to the kinds of personal injury that would be covered by the 1992 Act, as follows: (5). Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of - 3 . October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that would be covered by this Act had it occurred on or after the Ist day of July 1992. It is clear from s 135 that the intention of the Act was that claims for injuries suffered before the 1992 Act could only be made if they fell within s 135. The effect of s 135 was the subject of comment by Hardie Boys J delivering the judgment of the Court of Appeal in Childs v Hillock [1994] NZAR 97, 101: "It is not a section creating rights but rather one that ameliorates the consequences of the change from a more generous to a less generous compensation scheme. Under the new Act certain eventualities occurring after I July 1992 are no longer covered. The earlier Acts have been repealed as at I July 1992, unclaimed cover under those Acts in respect of those eventualities would come to an end unless preserved. Subsection (5) preserves them for three months. If the opportunity is not taken to lodge a claim, then the cover is lost." There can be no argument about the effect of the repeal of the 1982 and the limited continuance of claims under s 135. Counsel for the appellant referred to other claims which are awaiting hearing and urged this Court to defer the appellant's claim in order to take advantage of argument in those claims. So far as it could be ascertained, those claims fall into the different categories that come about when a claim for cover has been made in time but where the claim for lump sum compensation has been delayed. That is a different situation from the present appeal. At the conclusion of the hearing, and to avoid any appearance of prejudice to the appellant, I directed that the appellant could file further submissions. The time for filing submissions has now expired and the appeal is dismissed. DATED at WELLINGTON this 5/ day of March 1996 D A Ongley District Court Judge