Kam v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 133/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LEN WONG KAM of Torbay, Auckland Appellant (Appeal No. DCA 126/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge J W Imrie issued on 20 February 1997 under No. 22/97. The issue before the Court was the appellant's entitlement to lump sum compensation in respect of personal injury by accident arising out of a medical misadventure which occurred in April 1992. The application for an election to receive lump sum entitlement was lodged with the respondent on 29 March 1993 The application was declined by the respondent and that decision was confirmed by a review officer that pursuant to s.147 of the Act the appellant was deemed to be entitled to only an independence allowance, the application for lump sum payment not having been lodged with the respondent before the required date of 1 October 1992. The appellant also raised the issue that the respondent was estopped from denying entitlement by the action of its employee. His Honour Judge Imrie concluded that the issue of ss. 147(1) and 2A of the Act had been the subject of numerous decisions in which it was confirmed that the failure to lodge the application before 1 October 1992 was fatal to the application. He held 2 furthermore that by virtue of the decision of the High Court in ARCIC v ABC in the High Court in Auckland on 12 July 1996, the issue of waiver or estoppel is not applicable in the circumstances of this case. The appellant has submitted that the facts of the case had been misquoted by Judge Imrie and that he had incorrectly interpreted the decision in ARCIC v ABC. The appellant submitted that both issue of whether estoppel and/ or waiver apply in respect of s.147 is an important question of law upon which the High Court should make a decision. The respondent has submitted that the issues relating to the application of the question of estoppel are already the subject of the decision in ARCIC v ABC and do not need to be further investigated. The respondent further submits that the specific provisions of s.147 have been the subject of numerous appeals all of which have concluded that the failure to lodge the application before 1 October 1992 are fatal to an application for a lump sum award. I agree with the respondent's submission that both issues have already been the subject of numerous definitive decisions and do not raise any new issues of law which ought to be the subject of a further appeal to the High Court. Accordingly the application for leave to appeal is declined. DATED at WELLINGTON this 30th day of June 1997 evennadlatin A W Middleton District Court Judge dc12696.doc(rd)