LARKIN v ACCIDENT COMPENSATION CORPORATION [2020] NZCA 597

LARKIN v ACCIDENT COMPENSATION CORPORATION [2020] NZCA 597 [26 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA348/2020[2020] NZCA 597BETWEEN KURTIS LARKINApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentCourt: Clifford and Courtney JJCounsel: J M Miller and T W R Lynskey for ApplicantH B Rennie QC and C J Curran for RespondentJudgment:(On the papers)26 November 2020 at 10.30 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)[1] Kurtis Larkin was born on 4 January 1992. At birth he suffered a very seriousand permanent brain injury after foetal blood was lost into maternal circulation,causing oxygen deprivation which has manifested in cerebral palsy, quadriplegia andepilepsy. Mr Larkin has seizures every day and is dependent on others for all aspectsof daily life.[2] Mr Larkin's injury was the result of a treatment injury and he was entitled tocompensation under the then Accident Compensation Act 1982 (the 1982 Act).However, Mr Larkin's mother, Ms Hoare, was not made aware of this until 2005.A claim lodged at that time was accepted by the Accident Compensation Corp (ACC)following a District Court judgment in 2011.1 Mr Larkin has received attendant carefunded by ACC since 16 May 2011.2[3] The issue in this application is the extent to which ACC may retrospectivelycompensate Mr Larkin for attendant care he received before that date. As Mr Larkin'sclaim was filed when the Accident Compensation Act 2001 (the 2001 Act) was inforce,3 the issue falls to be determined by the transitional provisions of that Act and itspredecessors. ACC believes these only permit Mr Larkin to be paid from his birth to30 June 1993 and from 1 April 2002 onwards, with the intervening period excluded.Mr Larkin, represented in these proceedings by Ms Hoare as his litigation guardian,believes the legislation permits ACC to compensate him for the entire time.[4] Successive decisions in the District Court and High Court found in favour ofACC.4 Mr Larkin now seeks special leave to appeal to this Court.5BackgroundLegislative framework[5] This application draws upon four iterations of the accident compensationlegislation:(a) the 1982 Act, which was in force at the time Mr Larkin suffered hisinjury;(b) the Accident Rehabilitation and Compensation Insurance Act 1992(the 1992 Act), which entered into force on 1 July 1992;1 Larkin v Accident Compensation Corp [2011] NZACC 60.2 After ACC sought to reduce Mr Larkin's hours of attendant care, he again brought a successfulappeal to the District Court confirming his entitlement to 24-hour care: Larkin v AccidentCompensation Corp [2014] NZACC 311.3 Then called the Injury Prevention, Rehabilitation, and Compensation Act 2001.4 Hoare v Accident Compensation Corp [2018] NZACC 177 [District Court decision]; and Larkinv Accident Compensation Corp [2019] NZHC 3085 [High Court decision].5 Leave to appeal was declined by the High Court: Larkin v Accident Compensation Corp [2020]NZHC 1234 [High Court leave application].(c) the Accident Insurance Act 1998 (the 1998 Act), which entered intoforce on 1 July 1999; and(d) the 2001 Act, which entered into force on 1 April 2002 and wasoperative when Mr Larkin filed his claim.[6] The starting point is the 2001 Act, which provides Mr Larkin will have coveronly if he satisfies the requirements of both the 1982 Act and the 2001 Act.6 Mr Larkindoes satisfy those requirements. Consequently, under s 83 of the 2001 Act, ACC mustprovide attendant care from the date of the claim, and may backdate payments to adate no earlier than the commencement of the 2001 Act.7 ACC agreed to backdatepayments and has accordingly compensated Mr Larkin for the attendant care hereceived from 1 April 2002 to 15 May 2011 (when it began funding the care directly).[7] Whether ACC may pay Mr Larkin for care before 1 April 2002 depends on theapplication of the 1982 Act in the transitional provisions of the 1992, 1998 and 2001Acts. It is convenient now to reverse the approach and explain these in chronologicalorder.[8] Mr Larkin's original entitlement can be found in s 80(3) of the 1982 Act, whichwould have applied had a claim been made very soon after his birth. That sectionprovided:Where a person suffers personal injury by accident in respect of which he hascover and the injury is of such a nature that he must have constant personalattention, the Corporation, having regard to any other compensation payable,may pay to that person, or if it thinks fit to the administrator of that person,such amounts as the Corporation from time to time thinks fit in respect of thenecessary care of the person in any place of abode or institution.[9] That entitlement did not apply to Mr Larkin for long, because the 1992 Acttook effect six months later and substantially revised the accident compensationscheme, rendering it less generous in many respects. The transitional provisions in6 Accident Compensation Act 2001, s 360.7 Rangiwhetu v Accident Compensation Corp HC Wellington CIV-2006-485-1402, 19 April 2007at [66]–[67].s 149 provided for a graduated adjustment process, in which claimants with greaterneeds were granted additional time to prepare for the imposition of the new scheme:8149 Compensation for pecuniary loss not related to earnings(1) Where any person was receiving or entitled to receive anycompensation under section 121 of the Accident Compensation Act1972 or section 77 or section 80 of the Accident Compensation Act1982 immediately before the 1st day of July 1992, that section shallcontinue to apply to payments in respect of that person until the31st day of December 1992 as if those sections had not been repealed.(2) The reference to the 31st day of December 1992 in subsection (1) ofthis section shall be read as the 30th day of June 1993 in respect ofcompensation under section 121 of the Accident Compensation Act1972 or section 80 of the Accident Compensation Act 1982 that iscompensation in respect of—(a) Provision of attendant care (being personal care and mobilityassistance necessary for the injured person); or(3) Notwithstanding subsections (1) and (2) of this section, where anyperson was receiving compensation under section 121 of the AccidentCompensation Act 1972 or section 80 of the Accident CompensationAct 1982 in respect of attendant care (being personal care andmobility assistance necessary for the injured person) at a weekly rateof $350 or more immediately before the 1st day of July 1992, thosesections shall continue to apply in respect of that person as if thosesections had not been repealed and the entitlements in respect of theperson may be reassessed from time to time under those sections.(Emphasis added.)[10] Thus, claimants affected by this section generally saw their payments reduceafter 31 December 1992 pursuant to subs (1). Those who required attendant careenjoyed a six-month deferral under subs (2) and saw their payments reduce after30 June 1993. And those who were especially vulnerable, and were in receipt of $350or more of weekly attendant care, were grandfathered into the old scheme undersubs (3) and never saw their payments reduce.[11] The parties partially agree on how this section applied to Mr Larkin:(a) The parties agree that subss (1) and (2) applied, because Mr Larkin was"entitled to receive" compensation under the 1982 Act. Because that8 Subsections (2) and (3)–(10) were inserted subsequently by s 2 of the Accident Rehabilitation andCompensation Insurance Amendment Act (No 2) 1992 and s 46 of the Accident RehabilitationInsurance Amendment Act (No 2) 1993, respectively.compensation was in the form of attendant care, his entitlement waspreserved until 30 June 1993. For reasons traversed below, thistransitional provision has been saved in subsequent Acts andaccordingly ACC has already compensated Mr Larkin for attendantcare from his birth until 30 June 1993.(b) Mr Larkin suggests, and ACC refutes, that subs (3) applied becausealthough he was not "receiving compensation in respect of attendantcare at a weekly rate of $350 or more immediately before the 1st dayof July 1992", as required, he was entitled to such compensation andwould have received such compensation had his legal rights been fullyunderstood by his family.[12] The remaining transitional provisions can be summarised briefly.[13] Section 149(1)–(2) was carried forward to the 2001 Act in two steps.First, s 439 of the 1998 Act preserved entitlements to receive compensation before30 June 1993 and provided that any unpaid compensation continued to be payable byACC. Second, s 376 of the 2001 Act continued the application of s 439.[14] Section 149(3) was carried forward in one step by s 374 of the 2001 Act:374 Compensation for pecuniary loss not related to earnings under1972 and 1982 Acts: attendant care and household help(1) This section applies if—(a) a person was receiving compensation at a weekly rate of $350or more immediately before 1 July 1992; and(b) the compensation was paid under section 80 of the AccidentCompensation Act 1982 or section 121 of the AccidentCompensation Act 1972 and was for—(i) attendant care, meaning personal care and mobilityassistance necessary for the injured person; or(c) the compensation was payable because of section 149(3) or(4) of the Accident Rehabilitation and CompensationInsurance Act 1992.(2) The sections referred to in subsection (1)(b)—(a) continue to apply to the person and to his or her entitlementto attendant care or household help; and(b) can be used from time to time to reassess the person'sentitlement to attendant care or household help.[15] As can be seen, the language of s 374 largely reflects the language of s 149(3).The primary contention for Mr Larkin, resisted by ACC, is that he satisfies therequirements of both s 149(3) and s 374 and consequently is entitled to compensationfor household care from 1 July 1993 to 1 April 2002, the only period for which he hasnow not been compensated by ACC.Proceedings below[16] ACC's position that it was not entitled to pay compensation for the 1993–2002period was upheld by a reviewer and by Judge JH Walker on an appeal by Mr Larkinto the District Court.9 By consent, Judge Harrison then granted leave to appeal tothe High Court on the following question of law:10Do sections 374 and 376 of the Accident Compensation Act 2001 confer anypower on the respondent to compensate the applicant for constant personalattention/attendant care provided over the period 1 July 1993–31 March 2002?[17] In a judgment dated 26 November 2019, Clark J dismissed the appeal.11She observed that the language of s 149(1) and (3) clearly distinguished betweenclaimants who were simply entitled to receive compensation and those who wereactually receiving it, and considered that Mr Larkin was effectively inviting her to readin a further subsection that was not there.12 Although it had been suggested that thelack of cover was the result of a legislative oversight, the Judge considered it was inreality the operation of a deliberate change in the accident compensation scheme inthe 1990s.13 The Court was not entitled to depart from the clear statutory language ofs 149(3) of the 1992 Act and Mr Larkin could not be compensated for the period inquestion.[18] Clark J also dismissed a subsequent application for leave to appeal tothis Court.14 She rejected a submission made for Mr Larkin (and repeated in9 District Court decision, above n 4.10 Hoare v Accident Compensation Corp [2019] NZACC 12 at [5].11 High Court decision, above n 4.12 At [29]–[30].13 At [36]–[37].14 High Court leave application, above n 5.this Court) that the decisions of Taylor v Taite and Campbell v ACC conflicted withher conclusions.15 She also rejected the suggestion (also repeated in this Court) thatthe lack of transitional provisions that would cover Mr Larkin for the period inquestion was a legislative oversight,16 and ultimately concluded no question of lawcapable of bona fide and serious argument had arisen.Submissions[19] For Mr Larkin, Mr Miller and Mr Lynskey sought leave to appeal on the samequestion of law that was before Clark J.17 At the outset, Mr Miller accepted thatMr Larkin does not come within the plain language of s 149(3), but contends that "hefalls outside the class of persons contemplated by that provision, but within the ambitof an appellate court's power to correct drafting omissions". The essential argumentfor Mr Larkin was thus that in enacting the 1992 Act (and subsequently), thelegislature overlooked those in the position of Mr Larkin who were vulnerableindividuals with an entitlement of at least $350 per week and who, for whateverreason, did not make a claim to ACC for many years.[20] Mr Miller submitted that the proper interpretation of the provisions in questionwas now the subject of competing High Court authorities, and this Court should stepin to determine the correct position. He understandably placed great weight uponthe judgment of Chambers J in Taylor v Taite, a case to which ACC was not a party,but which determined how back-payments already made by ACC ought to bedistributed among a family.18 Chambers J there applied a relatively generousinterpretation of s 149(3):[28] As at 1 July 1992, Jeremy [the man needing attendant care] was notin fact receiving compensation under s 80 'at a weekly rate of $350 or more'.But it is common ground that he should have been. The only reason he wasnot receiving compensation at a weekly rate of more than $350 was that ACCwas at that time misapplying the law. Clearly, therefore, since Jeremy shouldhave been receiving compensation at a weekly rate of $350 or more, hecontinued to be entitled to compensation under s 80 of the 1982 Act.15 At [13]–[21], referring to Taylor v Taite HC Rotorua M13/00, 23 May 2002; and Campbell vAccident Compensation Corp CA138/03, 29 March 2004.16 At [22]–[25].17 See above at [16].18 Taylor v Taite, above n 15. Compare New Zealand Guardian Trust Co Ltd v Pora [2007] NZAR1 (HC) at [35].[21] Mr Miller also relied upon a passage of this Court's judgment in Campbell vACC, a case which primarily concerned s 149(1)–(2) of the 1992 Act.19 LikeMr Larkin, the appellants in Campbell were injured while the 1982 Act was in force;unlike Mr Larkin, they applied for compensation in the mid-1990s, when the 1992 Actwas in force. This Court accepted that under the 1992 Act and its numerouscomplicated amendments, the appellants were entitled to attendant care compensationthrough to 30 June 1993. It left open, however, whether the Accident Rehabilitationand Compensation Insurance (Social Rehabilitation — Attendant Care) Regulations1993 (the 1993 Regulations) could be interpreted to provide some degree of coverfrom the expiry of s 149(1)–(2) entitlements on 30 June 1993 to the date their claimwas filed several years later.20 Mr Miller suggested this observation, which heconceded was obiter, opened the door to Mr Larkin relying upon the 1993 Regulationsin this Court.[22] For ACC, Mr Rennie QC and Mr Curran relied primarily on the reasoning ofClark J in the High Court. Mr Rennie noted Mr Larkin conceded that a plain readingof the provisions left ACC with no power to compensate him. The suggestion that thiswas the result of a legislative oversight that ought to be remedied by this Court was,he submitted, unsustainable: in passing the 1992 Act, Parliament had made a clearpolicy decision not to carry over entitlements indefinitely except for those who werealready in receipt of, and dependent upon, weekly payments of $350 or more. Further,the cases relied upon by Mr Miller did not disclose a seriously arguable question oflaw. The application should therefore be declined.Analysis[23] The threshold for the grant of special leave was explained by this Court inCullen v ACC:21[5] This Court has power to grant special leave to appeal under s 163(2)of the Act. The principles applicable to an application for leave under s 67Judicature Act 1908 apply equally to an application under s 163 of the Act.The Court will exercise this power if satisfied that there is a serious questionof law capable of bona fide and serious argument in a case involving some19 Campbell v Accident Compensation Corp CA138/03, 29 March 2004.20 At [34]–[35] and [44(5)].21 Cullen v Accident Compensation Corp [2014] NZCA 94 (footnotes omitted).interest, public or private, of sufficient importance to outweigh the cost anddelay of a further appeal. Other relevant considerations include thedesirability of finality of litigation and the overall interests of justice.The primary focus is on whether the question of law is worthy ofconsideration.ACC suggested that applicants for special leave to this Court are also required to pointto some further, extraordinary factor not properly taken into account bythe High Court. However, we are satisfied that the test in Cullen already setsan appropriately high bar for leave and, being well-established,22 need not bedisturbed.[24] We accept that Mr Larkin has presented a question of law which involvesa significant degree of private interest to him and, possibly, general public interest toother ACC claimants affected by these transitional provisions. However, for thereasons that follow, we are satisfied that the question is not capable of bona fide andserious argument, as the provisions cannot reasonably be construed in the manner thatMr Larkin desires. There is no ambiguity in the legislation and it is not the case thatParliament has simply mistakenly overlooked the need to enact savings or transitionalprovisions which the court will then infer from ordinary principles of interpretation.23[25] First, as a matter of simple textual analysis, the difference between s 149(1)and (3) is clear. The first addresses those who are "receiving or entitled to receive"compensation, while the second only addresses those "receiving". The apparent policyimplication behind that distinction is that Parliament wished to grandfather in existingclaimants, so as not to cause them severe hardship by removing payments they hadbecome accustomed to, while applying a "sinking lid" so that future claimants wereforced to transition to the 1992 Act. Such an approach does not imply any oversighton the part of the legislature.[26] Second, as Clark J observed,24 the suggested interpretation of s 149(3) wouldrender 149(10) redundant.25 That subsection provided:22 For recent applications, see for example Gaskin v Accident Compensation Corp [2020] NZCA 147at [7]; and Matthew v Accident Compensation Corp [2020] NZCA 449 at [29].23 See generally Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis,Wellington, 2015) at 634–638.24 High Court decision, above n 4, at [32(c)].25 Section 149(10) has been re-enacted as s 374(5) of the 2001 Act.(10) For the purposes of subsections (3), (4), and (7) of this section,a person shall be deemed to be receiving compensation immediatelybefore the 1st day of July 1992 if that person has an entitlement to doso by virtue of a decision on review or appeal given after that date,and the application for review was made before the 1st day of October1992.In fact, interpreting s 149(3) to benefit Mr Larkin would directly conflict withs 149(10) by effectively eliminating the deadline of 1 October 1992 for lodgingapplications for appeal or review. Claimants would be able to do so at any timeafterwards, as Mr Larkin has done.[27] Third, we agree with Clark J that Campbell v ACC does not substantially assistMr Larkin. As to the point concerning the 1993 Regulations, we read this Court'sjudgment as suggesting, albeit very gently, that reg 3(1)(b) can be construed to captureindividuals with an unexercised entitlement under s 149(2) of the 1992 Act. The effectof such an interpretation would be that individuals such as Ms Campbell could enjoyback-payment of attendant care pursuant to the 1993 Regulations from 1 July 1993 towhenever their claim was filed. Even if the 1993 Regulations can be read in such away, however, that does not assist Mr Larkin because (unlike the claimants inCampbell) he did not apply to ACC when the regulations were in force, and he has notpointed to a statutory pathway which permits the payment of compensation.The transitional provisions applicable to s 149(1)–(2) do not assist as they areexpressly time-bound to entitlements arising on or before 30 June 1993.26 Mr Larkinis therefore again left with s 149(3), as its transitional provisions are not time-boundin such a way. But the Court in Campbell v ACC specifically considered s 149(3) andobserved that "the words 'was receiving compensation' suggest that the [subsectionapplies] only in relation to claimants who were actually receiving payments prior to1 July 1992 at a weekly rate of $350 or more".27 Mr Larkin is not such a person.[28] Fourth, we are not persuaded that there is a controversy in the High Courtauthorities that ought to be resolved by this Court. We see Taylor v Taite as somethingof a special case arising from the fact that Mr Moncur (the injured man) was underpaidonly because of a legal misapprehension by ACC. Chambers J's approach simply26 Section 439 of the 1998 Act, brought forward by s 376 of the 2001 Act: see above at [13].27 Campbell v Accident Compensation Corp, above n 21, at [43].recognised the fact that it would be wrong to disadvantage Mr Moncur by preservingthe interpretation that had been incorrectly applied by ACC.[29] We therefore conclude that this application does not raise a question of lawcapable of bona fide and serious argument.Result[30] The application for leave to appeal is declined.[31] There is no order as to costs.Solicitors:John Miller Law, Wellington for ApplicantRussell McVeagh, Wellington for Respondent