Fairgray v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON Decision No. 118/2003 DCA No. 328/97 UNDER The Accident Rehabilitation & Compensation Insurance Act 1992 IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KIM MICHELLE FAIRGRAY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Date of Decision: 16 June 2003 DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT OF JUDGE J. CADENHEAD https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/118- 2003.doc AE [1] The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge A.W. Middleton dated 15 March 1999 under No. 63/99. [2] The issue in the appeal is whether the appellant is required pursuant to the provisions of s.147 of the 1992 Act in order to qualify for the payment of a lump sum compensation under the 1982 Act to complete an election in writing not later than 31st day of May 1993. That is the appellant must elect whether to accept either a lump sum payment or an independence allowance, but not both. THE FACTS [3] On 2 March 1989, the appellant lost a twin girl as a result of a prolapsed cord. [4] On 2 March 1990, the appellant lodged a claim with the respondent in respect of the mental consequences that she had suffered as a result of the death of her baby. For this claim to be accepted by the Corporation, it was necessary for the Corporation to rule on the question of medical misadventure. [5] On 11 June 1990, the Corporation declined to accept the claim as being medical misadventure. [6] On 10 December 1990, after a review hearing, (where the appellant was represented by legal counsel) the Review Officer decided that medical misadventure had occurred, and referred the matter back to the respondent to discuss possible entitlements. [7] The appellant was asked to provide full details of the mental consequences she suffered. [8] On 3 March 1991, in a letter to the respondent, these details were provided. These details were then forwarded by the respondent to a psychiatrist with a view to assisting concerning consideration of claims pursuant to s.78 and s.79 of the 1982 Act. 118-2003 2 [9] The psychiatrist reported that the respondent had suffered extreme grief at the loss of her baby. This was improving and was likely to continue to improve although the appellant would always harbour some grief and resentment. [10] In a memorandum dated 3 May 1991, the respondent’s client officer recommended that the appellant’s suffering justified an award under s.79. [11] On 13 May 1991, the respondent resiled from that position and decided that the appellant needed to have suffered some form of physical injury in order to claim for mental consequences. The Corporation wrote to her on that date and advised her that as she did not suffer any physical injury, her claim was declined. [12] In view of the decision of Accident Compensation Corporation v E [1992] 2 NZLR 1820 that was an erroneous legal conclusion. [13] As a result of a further review hearing on 7 August 1996, the Review Officer determined that the appellant was entitled to cover for personal injury by accident for mental consequences, and referred the file back to the Corporation for possible entitlements. [14] On 9 September 1996, Dr Louis Armstrong, the psychiatrist, confirmed that the appellant had suffered a mental injury caused by the accident, that injury being major depressive disorder. [15] On 27 March 1997, the respondent then declined to accept the appellant’s application for lump sum because it found that there was no written application for a lump sum on file which pre-dated 1 April 1993 as required by s.147(1) of the 1992 Act. [16] On 23 September 1997, the Review Officer made a finding that the appellant had made an application for lump sum under s.147(1) but had failed to provide an election to receive a lump sum rather than an independence allowance. [17] On 15 March 1999, Judge A.W. Middleton declined to grant the appeal on the basis of a strict statutory interpretation of the requirements of s.147. 118-2003 3 CONCLUSION [18] I grant leave for the appellant to bring an appeal to the High Court. In my opinion, there is a difficult question of statutory interpretation involved on the facts of this particular case. I have considered the extensive memorandum of the respondent in opposition to leave not being granted. I also have considered the submissions made by the appellant. [19] In my view, one of the outstanding questions that arises in this appeal is whether the provisions of s.147 apply when the claim was acknowledged but wrongly processed, before the advent of the 1992 legislation. [20] I note in his decision that Judge Middleton said that the history of this claim demonstrated a very severe injustice to the appellant. The recent case of Frucor Beverages Ltd v Rio Beverages Ltd [2001] 2 NZLR 604 has indicated that statutes by virtue of the Interpretation Act 1999 must be interpreted in a purposive manner that reflects the intention of the legislation. The legislation is not intended to provide a result, which was unworkable or impracticable, inconvenient, anomalous or illogical. Here the application for compensation was made and declined before any issue of election could ever be made. [21] An issue that arises in this case is whether the statutory intention of the legislation would be to disbar a class of person, who had brought a claim initially timeously, such as the appellant having regard to the facts of this particular case. I realise that there are powerful counter arguments such as set out in Campbell and Another v ACC (AP 170/2, High Court, Wellington, Hammond J 25-3-2003) and I do not know whether the facts of the present case are outside the ambit of that precedent. [22] I grant leave to appeal. (J. Cadenhead) District Court Judge 118-2003 4