Wong-Kam v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 22/ 97 IN THE DISTRICT COURT DCA No. 126/96 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN L. WONG-KAM APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 25 October 1996 Date of Decision: 20 February 199 7 S.J. Callanan as counsel for the appellant A.E. Howman as counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE The appeal fails. Introduction: The issue in this appeal is whether the appellant is entitled to lump sum compensation. The appellant accepts that no claim in respect of his personal injury had been lodged with the Corporation before 1 October 1992 as required [P:\IMRIEJ\KAM.DOC JAB] 2. by s. 147 but submits that the Corporation is required to pay him lump sum compensation because of estoppel or waiver. By letter dated 29 March 1993 the solicitors acting for the appellant wrote to the Corporation enclosing his election form for lump sum entitlement for medical misadventure which occurred on or about 28 April 1992. The medical misadventure alleged was that the appellant's specialist had failed from 28 April 1992 until 10 November 1992 to identify a nasopharyngeal carcinoma. The letter advised that the appellant had not made a claim previously as the correct diagnosis was not made until 29 January 1993. A number of documents accompanied that letter. The letter and the documents were received by the Corporation on 2 April 1993. In the election notice dated 29 March 1993 the appellant advised that he wished to be considered for a possible entitlement to lump sum compensation. A form of claim dated 14 April 1993 for cover and treatment expenses was received by the Corporation on 15 April 1993. The claim was considered by the Corporation's Medical Misadventure Advisory Committee. The Corporation wrote to the appellant by letter dated 4 September 1994 informing him that his claim had been accepted as medical error. 3. On 13 February 1995 the Corporation informed the appellant that he was ineligible for lump sum compensation because he had not lodged a claim with the Corporation prior to 1 October 1992. By notice dated 4 April 1995 the appellant applied for a review of that decision requesting that the Corporation accept the claim under the 1972 or 1982 Acts. The review was heard on 2 April 1996. The appellant attended with his counsel who presented written submissions. The Review Officer issued a written decision dated 12 April 1996. After reviewing the history of the claim and the submissions the officer decided that the claim failed because the claim for personal injury was not lodged with the Corporation before 1 October 1992 as required by s. 147. The appellant lodged a notice of appeal dated 18 April 1996. The grounds for the appeal were that the Review Officer incorrectly interpreted s. 147, the Review Officer did not apply the rules of estoppel, and during the time the Corporation took to advise the appellant of its decision the appellant acted to his detriment. Prior to the hearing of the appeal the appellant applied for leave to give evidence. That application was not opposed and at the hearing of the appeal the appellant gave evidence. In summary he referred to the wording of the 4. election form that he had signed and said that he believed that his claim had been accepted under the 1982 Act and that he would shortly be getting lump sum compensation. He said that in telephone conversations from March 1993 onwards he was led by officers of the Corporation to believe that he would be paid compensation. He went into debt with the purchase of a motor vehicle on the basis that he would be paid lump sum compensation and when he was he would be able to pay for the vehicle. He would not have done that if he had known that the money was not going to be paid to him. He said that when on or about 17 November 1994 he was told by the Corporation that it would not pay him lump sum compensation he was devastated. He had been acting on the promise of a lump sum payment since March 1993 and did not believe that the Corporation had treated him fairly. He also said that he believed that he was making a claim under the 1982 Act as he had previously made a claim for lump sum compensation under that Act. At the hearing of the appeal Ms Callanan presented and expanded on written submissions. In particular she advised that the appellant relied on estoppel and waiver. Mr Howman filed written submissions relating to s. 147. Each counsel referred to a number of decisions. Mr Howman was given leave to file and serve within fourteen days written submissions on estoppel and waiver and on the meaning of the words "given my claim is accepted ..." in the election notice. Ms Callanan was given leave to file and serve a reply within fourteen days. 5. Those submissions have been received. Consideration: There is evidence that officers in the Corporation accepted that Mr Wong Kam's claim for lump sum compensation should be accepted despite the fact that he had not lodged a claim with the Corporation before 1 October 1992. The election notice reads as follows:- "ELECTION FORM FOR EITHER LUMP SUM COMPENSATION OR INDEPENDENCE ALLOWANCE Background: Clients who had an accident prior to 1 July 1992 may be eligible for either a lump sum or an independence allowance. Definitions: 'Lump sums' are a one off payment. Maximum amounts payable depend on the date of the accident: 1/ 4/74- 30/7/74 = $12,500 1/10/74 31/3/83 = $17,000 1/ 4/83 - 30/6/92 = $27,000 'Independence Allowance' Payments are made quarterly in advance and are non-taxable. The payment of an independence allowance is related to the degree of disability and must be independently assessed. The maximum payment is $40 per week for total disability. Reassessment may occur from time to time. Requirements: 1. The accident and injury must have occurred before 1 July 1992. 2. The claim must have been submitted before 1 October 1992. 3. The claim must be accepted under the Accident Compensation Act (1972 or 1982). 4. An election notice must be completed and received by ACC before 31 March 1993. Completing the Election Notice: You should complete this personally unless: 6. you have already completed an election notice; you are represented by an attorney as he/she may complete this election on your behalf; it is clear that an agent is representing you in your dealings with the ACC and then this agent may complete the election on your behalf. Note: If you do not complete an election notice but have an entitlement you will only be considered for an independence allowance. ELECTION NOTICE NAME: LEN WONG-KAM ADDRESS: 3 Carlisle Road, Browns Bay CLAIM NO: Given my claim is accepted under the Accident Compensation Act (1972 or 1982) Tick one only: I wish to be considered for a possible entitlement to lump sum compensation; OR I wish to be considered for a possible entitlement to an independence allowance; OR I do not wish to be considered for either lump compensation or an independence allowance Signed: (S.J. Callanan) Date: 29. 3.93 as solicitor and duly authorised agent to Len Wong-Kam If not injured person, state name: SANDRA JOAN CALLANAN, Solicitor, 39 Anzac Road, Browns Bay PO Box 35 361, Browns Bay DX 3400 Tele: (09)479 5344 Circle relationship to injured person: (Solicitor/Attorney/Agent) This election form must be received by ACC no later than 31 March 1993 There is on the Corporation's file a memorandum dated 23 September 1994 from Layne Lochore, case manager, to John Orange, branch manager. That. memorandum was sent via Mike Dunn, the principal case manager, and there is a notation on it which indicates that Mr Dunn agreed with it. The memorandum reads as follows:- 7. "Background This is a claim for undiagnosed nasopharynx cancer which has been accepted as medical misadventure. Mr Wong-Kam first sought treatment on 28 April 1992 when he consulted Mr Bren Dorman for snoring problems, possible sleep apnoea and a cheek mass. He had two further consultations with Mr Dorman before seeking a second opinion with Mr Baber. The file was referred to the BMO who has advised that he felt the 28 April 1992 (ie date of first consultation) should be the deemed accident date as this was the date Mr Wong-Kam first sought treatment for the symptoms. In regards to the lodgment date I feel that this is a situation where flexibility is called for. The Act states that in order to qualify for lump sum compensation the accident must have occurred before 1 July 1992 and the claim lodged prior to 1 October 1992. In a case like this had the client been correctly diagnosed at the time a claim would never have eventuated. As the correct diagnosis did not occur until 11 January 1993 the client could not possibly have lodged a claim within the specified time frames. The client via his lawyer has elected to receive lump sum compensation. However, several points need to be recognised in relation to this - Correct diagnosis did not occur until 11 January 1993. The claim itself was not lodged until 30 March 1993. W N First consultation was 28 April 1992 if the correct diagnosis was made at this point, outcome may have been different. 4 Prognosis is poor I have consulted Paul Miller at Head Office in relation to this who has advised that under Section 63(3) the deemed date of accident is the date the person first received treatment for the condition. However he also stated that it was 'my call'. I recommend this file be accepted for lump sum compensation and weekly compensation (client was self employed on 28 April 1992) should be discretionary. 8. Recommendation Accept request for lump sum compensation and transfer file to Employers Account to consider any entitlements." In her first written submissions Ms Callanan advised that the appellant relied on the doctrine of estoppel and in particular the decision of the Commonwealth of Australia v Verwayen (1990) 170 CLR 394. Waiver: In her submissions Ms Callanan referred to a reference at p.472 of Verwayen's case quoting a judgment of Lord Hailsham in Banning v Wright (1972) 1 WLR 972 at 479:- "Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles of estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge.' Further, Toohey J said of Verwayen '... that it may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate. Detriment is not an essential attribute of waiver, though it will often be found as consequence. Within the adjudicationocess at any rate, it is enough that the defendant 'renounces' a defence which is available to him and which is there for his benefit.'" Ms Callanan further submitted:- "(b) In the present case, it is clear from two documents that the Corporation waived its right to reject Mr Wong Kam's claim 9. for lump sum compensation. Firstly, the election form provides that the applicant must comply with four requirements. As Mr Wong Kam had not met one of the requirements, namely that his claim had not seen submitted before 1 October 1992, then by implication the sending of the election form to Mr Wong Kam for his signature is deemed to be a waiver of that requirement. (c) Secondly, the Memorandum of Layne Lochore dated 24 September 1994 clearly sets out that the Corporation were aware that Mr Wong Kam's claim was not lodged prior to 1 October 1992. At page 2 of that Memorandum the Corporation states that it was 'my call' and that the Accident Compensation were clearly of the view that despite there being a ground for rejection of the claim, the claim should be accepted. It is therefore submitted that the Corporation knowingly waived the requirement. (d) Clearly, the article in the New Zealand Herald is further evidence of the Corporation waiving some of the requirements on the basis of negligence, mistake etc." In his first written submissions Mr Howman referred to s. 147 and s.63(3) of the Act and submitted:- "8. The Corporation has determined that the appellant has a valid claim for medical misadventure in terms of the Accident Rehabilitation and Compensation Insurance Act 1992. Section 63(3) provides that the appellant's injury shall be deemed to have been suffered on the date on which he first received treatment for the injury. In this case the appellant sought treatment from Dr Dorman between April and November 1992. Dr Dorman failed to identify the appellant's carcinoma. It appears that the appellant's condition was first identified by Dr Baber in January 1993. 9. The Corporation accepts that the appellant made a written application for lump sum compensation prior to 1 April 1993. A written election form dated 29 March 1993 appears on the Corporation's file. 10. The Corporation submits that the sole issue in this case relates to the date of the lodging of a claim by the appellant with the Corporation. 10. 17. The Corporation submits that there is no issue in this case as to the date upon which the appellant lodged a claim with the Corporation. The appellant provided the Corporation with a written election form on 29 March 1993 and with a claim for cover on 14 April 1993. He did not lodge a claim with the Corporation prior to 1 October 1992 and, accordingly, it is submitted that he is ineligible for entitlement to lump sum compensation pursuant to section 147 of the Act." In his closing written submissions Mr Howman said:- "Estoppel 9. The existence of the Accident Rehabilitation and Compensation Insurance Corporation is continued from previous legislation by section 155 of the 1992 Act. The Corporation submits that its function is to apply the provisions of the 1992 Act. 10. Part Vill of the 1992 Act contains transitional provisions. Section 147 provides that, in certain circumstances, a claimant may be entitled to payment of lump sum compensation pursuant either to the 1972 or 1982 Accident Compensation legislation. Section 147(2A) provides that no person shall have an entitlement to payment of lump sum compensation unless a claim in respect of personal injury by accident is lodged with the Corporation before 1 October 1992. That provision is absolute. The Act does not give the Corporation any discretion in its application. 11. The Corporation submits that it is accepted that the doctrine of estoppel cannot operate to oblige a party to act ultra vires the powers given to it by legislation. The Corporation refers to the decision of the English Court in Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724. That case concerned a lease of land entered into between the Minister and a private party. The Minister had, by regulation, power to take possession of agricultural land and to authorise persons to use the land. In this case the Minister had entered into an agreement to lease the land. The Minister's power to do this was disputed. The Court held that the Minister's only interest in the land was conveyed by regulation which only gave the Minister the power to grant the right of occupation 11. of the land. Further, the Court held that the Minister was not empowered to enter into an agreement of lease in respect of the land. 12. Amongst other things, the defendant argued that the Minister was, by reason of the execution of the lease, estopped from denying that a tenancy had been vested in the defendant. His Honour Cassels J held that the Minister was only able to perform the acts which he was empowered to perform and that an ultra vires act would not be an act of the Minister at all. His Honour referred to the unreported decision of Minister of Agriculture & Fisheries v Hunkin which had involved a consideration of an identical question. His Honour cited the following passage from the decision of Master of the Rolls in that case: '[Counsel] suggested, first of all, that even assuming, as he conceded, that the regulations gave no power to the Minister to create a tenancy, nevertheless the Minister was estopped from denying that the document in question did create a tenancy and, accordingly, the relationship must be regarded as one of landlord and tenant. There is, I think, a very short answer to that. Accepting the view which Mr Baillieu [counsel] accepts, that the Minister has no power under the regulations to grant a tenancy, it is perfectly manifest to my mind that he could not by estoppel give himself such power. The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by effecting an estoppel. That point, I think, can be shortly disposed of.' 13. The Court held that the Minister was not estopped from denying that a tenancy had been vested in the defendant. This decision was later affirmed in Rhyl Urban District Council v Rhyl Amusements Limited [1959] 1 All ER 257. 14. The appellant's appeal concerns the proper interpretation of section 147 of the 1992 Act. That section provides that persons seeking to claim lump sum compensation shall only be eligible for such payment if (amongst other things) a claim is lodged with the Corporation prior to 1 October 1992. The appellant did not lodge a claim with the Corporation prior to this date. He argues, however, that a case manager of the Corporation informed him that he would, nevertheless, be entitled to payment of lump sum compensation. 12. 15. The Corporation makes two arguments in response to this claim. 16. First, it is submitted that the appellant cannot rely upon the doctrine of estoppel so as to oblige the Corporation to perform an act outside the powers given to it by the Act. The 'cut off' date contained in section 147(2A) of the Act is absolute. The Act does not give the Corporation any discretion to make payment of lump sum compensation in respect of claims brought after 1 October 1992. The Corporation submits, therefore, that it cannot be obliged to act beyond the powers given to it by the Act to make payment of lump sum compensation to the appellant. 17. Secondly, it is submitted that the appellant's case rests upon an erroneous statement made to him by one of the Corporation's case managers. The Corporation submits that its legal liability cannot be determined by the actions of one of its case managers where that case manager has acted in error in making a representation about the powers granted to the Corporation. The Corporation refers to the decision of Tompkins J in ARCIC v ABC (unreported, High Court, Auckland, 12 July 1995) at page 10 and says that its position is not to be taken as that erroneously conveyed by the case manager. For these reasons it is submitted that the appellant's arguments based upon the doctrine of estoppel must fail. Waiver 18. The appellant argues that the Corporation acted deliberately in deciding 'not to rely upon a defence' available to it. At paragraph 6 of the appellant's submissions the appellant argues that the Corporation 'waived its right' to reject the appellant's claim for lump sum compensation. 19. The Corporation submits, with respect, that this point may be dealt with shortly. The Corporation is obliged to apply the provisions of the Act. Section 147 of the Act does not provide the Corporation with a 'right' to reject a claim for lump sum compensation. It provides a statutory scheme regulating the circumstances in which claimants are entitled to receive payments of lump sum compensation. Section 147 provides that the appellant in this case is not entitled to lump sum compensation. The Corporation is bound to apply section 147. It does not have any discretion or 'right' to disregard the provisions of section 147. It is, therefore, 13. submitted that it is not open to the appellant in this case to bring an argument based upon the doctrine of waiver. Election Form 20. The Corporation refers to the election form completed by the appellant on 29 March 1993. That form is entitled 'Election Form For Either Lump Sum Compensation Or Independence Allowance'. At the top of the form four 'requirements' for the payment of lump sum compensation are listed. Those requirements are as follows: a) The accident or injury must have occurred before 1 July 1992. b) The claim must have been submitted before 1 October 1992. c) The claim must be accepted under the Accident Compensation Act (1972 or 1982). d) An election notice must be completed and received by ACC before 31 March 1993. 21. At the foot of the form the appellant has ticked a box alongside which the words 'I wish to be considered for a possible entitlement to lump sum compensation' appear, 22. The provision of this form to a claimant cannot be taken to be an unequivocal act of the Corporation from which it can be inferred that a claimant is entitled to payment of lump sum compensation. The Corporation submits that the terms of this form make it apparent that one of four prerequisites to payment of lump sum compensation is the submission of a claim to the Corporation prior to 1 October 1992. That 'requirement' was not met in this case. It is implicit that unless the four 'requirements' are met a claimant will not be entitled to payment of lump sum compensation. 23. Further, by ticking the particular box on the form referred to above the appellant merely indicated his 'wish' to be 'considered for a possible entitlement'. It is submitted that on the facts of the appellant's case, a proper consideration would have resulted in a conclusion that the appellant was not entitled to payment of lump sum compensation." 14. In her closing submissions Ms Callanan said:- "SECTION 159 CORPORATION TO COMPLY WITH GOVERNMENT POLICY '(1) In the performance and exercise of its functions, duties and powers, the Corporation shall comply with any directions relating to the policy of the Government that are given by the Minister to the Corporation by notice in writing.' 1. It is submitted that Document 3 (the Herald article) quoting the Minister for Accident Compensation, Mr Cliff, as saying 'the deadline has been waived where people had applied late because of the wrongful action of the Accident Rehabilitation and Compensation Insurance Corporation.' is evidence of Government policy and specifically directs the Corporation to accept late claims in certain circumstances. It is therefore submitted that Section 159(1) specifically envisages situation where Government policy and Ministerial direction might override a statutory power of the Corporation. 2. Further, it is submitted that the appellant's claim comes within the wrongful action of the Corporation. This comes about because the appellant's estoppel argument, the documentation which has been supplied to the appellant confirming that a lump sum payment is to be paid, the verbal assurances given by several people to the appellant himself and the election form. THE POWERS OF THE CORPORATION 3. It is submitted that the Corporation had the power to accept the appellant's claim for lump sum compensation or to reject it. The Corporation chose to waive a requirement under Section 147 of the Act when accepting the appellant's claim. The appellant's case was not alone. According to the Herald article about 1600 people had late claims for lump sums accepted by Accident Compensation Officials 'because they were . misinformed by staff or subject to other wrongful actions'. 4. It is a nonsense to say that the Corporation were acting ultra vires their statutory powers in accepting 1600 cases that were filed late. The Ministerial statement specifically 15. envisages mistakes, misinformation and wrongful actions. That is the category that this appellant falls into. 5. In Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724 the Minister had been granted only a limited power. The Corporation in this case has to choose between two powers given to it namely, one to accept an application or two, to decline an application. Once the application is accepted the various arguments in relation to estoppel and waiver apply. It is the power to accept the application which is under scrutiny. The logical extension of the Corporation's argument is: (a) The Corporation did not have the power to accept the application, and (b) If they did accept the application, they were acting ultra vires. Clearly neither of those propositions are tenable. 6. In the Ministry of Agriculture case (supra) the Minister granted a right to someone which it did not have to give in the first place. In the present case, the Corporation does not have the power to accept an application for lump sum payment, which it did. DOCUMENTATION 7. The appellant's case is not based on an erroneous statement made to him by one of the Corporation's case managers. This proposition would suggest a one-off statement made to the appellant is a casual way. Clearly, there is ample documentation apart from verbal statements and promises made to the appellant which evidences the acceptance of the claim by the Corporation. 8. Election Form - (a) Mr Wong Kam, through his solicitor and agent, completed the Election Notice and sent the election notice to the Corporation under cover of a letter dated 29 March 1993. The ACC received the election form and letter on 30 March 1993. (b) The Election Notice states 'Given my claim is accepted under the Accident Compensation Act (1972 or 1982). Tick one only'. It is submitted that the words 'Given my claim ...' 16. mean that the claim has been accepted under the 1972 or 1982 Act. (c) The word 'if' has not been used in this phrase. i.e. If my claim is accepted under the Accident Compensation Act 1972 or 1982, and it is therefore clear that this phrase does not envisage any unlikelihood that the claim is not accepted under the 1972 or 1982 Act. (d) The Pocket Oxford Dictionary at page 369 provides a definition of 'given' as it is used in the context of the election notice - '(in past part) assume or grant or specify (given the circumstances, in a given situation; given that we earn so little)'. The definition therefore of 'given' in this situation clearly means assume or grant. The appellant therefore believes that this document clearly accepts his claim under the Accident Compensation Act (1972 or 1982). (see page 369 attached) 9. The memorandum of the Case manager dated 23 September 1994 is a clear statement that lump sum compensation is to be paid. WAIVER 10. At page 458 of the Verwayen decision the case of Phillips v Martin (1890) 11 NSWLR 153, is mentioned and is exactly on point. In that case at page 158, Darley CJ said: 'Here there is abundant evidence of waiver, and it is quite clear that a man may by his conduct waive a proposition of an Act of Parliament intended for his benefit. The caveator was not brought into Court in any way until the caveat had lapsed. And now the applicant, after all these proceedings have been taken by him, after, doubtless, much expense has been incurred on the part of the caveator, and after lying by and hoping to get a judgment of the Court in his favour - asks the Court to do that which but for some reasons known to himself he might have asked the Court to do before any other step in the proceedings had been taken. I think he is altogether too late. It is to my mind a clear principle of equity, and I have no doubt there are abundant authorities on the point, that equity will interfere to prevent the machinery of an Act of Parliament being used by a person to defeat equities which he has himself raised, and to get rid of a waiver created by his own acts'. 17. 11. The maximum 'Quilibet potest renunciarc juri pro se introducto' applies to this case. In Broom's Legal Maxims, 10th ed (1939) p 477 this translates as follows: 'Any one may, at his pleasure, renounce the benefit of a stipulation or other right introduced in his own favour'. 12. It is submitted that the Corporation knowingly waived a requirement which it was perfectly entitled to do and accepted the appellant's claim." Conclusion: Section 147(1) and 2A of the Act read:- "147 Compensation for non-economic loss - (1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 but has not received that compensation and makes written application for that compensation before the 1st day of April 1933, that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act." "(2A) For the avoidance of doubt, it is hereby declared that, for the purposes of subsections (1) and (2) of this section, no person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of the personal injury by accident had been lodged with the Corporation before the 1st day of October 1992." The effect of those provisions is that the Corporation cannot accept Mr Wong-Kam's claim for lump sum compensation Section 156(1) and (2) read:- 18. "156. Functions, duties, and powers of Corporation - (1) The Corporation shall perform such functions and duties and have such powers as are conferred or imposed on it by or under this or any other Act. (2) The Corporation shall also have such powers as are necessary or expedient to enable it to perform its functions and duties." Subsection (2) does not give the Corporation power to make payments that it is not authorised by the statute to make. In a number of decisions of this Court prior to the High Court decision in ARCIC v ABC (High Court, Auckland, 12 July 1996) was held to be bound by the decisions of its officers. However, the law is as stated in ARCIC v ABC. The Court said at pp.9 and 10:- "On its face, the 5 September 1983 claim was only in respect of the knee injury. The only basis on which it could be claimed that it was also a claim in respect both of the HIV and the hepatitis C infection, was the approach adopted by the appellant when, in respect of the HIV infection, the appellant's assistant manager in Christchurch made the note of 7 April 1989 that I have set out above. He considered that 'His HIV + condition is therefore a consequence of the original PIBA and doesn't need consideration as a fresh claim'. It was this approach that persuaded the Judge to decide that the appellant having treating the lodging in 1983 of the claim relating to the knee injury as the lodging of the claim for the HIV infection, it should also regard the lodging of the 1983 claim as the lodging of a claim for the hepatitis C infection. I do not consider that approach to be correct. As a matter of fact, the HIV infection was the subject of a separate formal claim received by the appellant on 20 November 1986. Quite apart from that, I do not consider that the appellant's legal liability in respect of the present claim is to be determined by how the Christchurch assistant manager regarded the claim in respect of the HIV infection." 19. The effect of this judgment is that waiver or estoppel cannot apply in this case. The Corporation's legal liability depends on the Act, not on the decisions or actions of its officers. Section 147(2A) of the Act provides that no person has an entitlement to lump sum compensation unless a claim in respect of the personal injury by accident had been lodged with the Corporation before 1 October 1992. In this case the appellant did not lodge a claim in respect of the personal injury with the Corporation before 1 October 1992. The result is that the decision of the Corporation is confirmed and the appeal is dismissed. It should be noted that although the appellant's claim for lump sum compensation fails he is entitled to cover and other entitlements under the 1992 Act. (J.W. Imrie) District Court Judge