Hing v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 26 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LINDA CHRISTINE HING of - Whangarei Appellant (Appeal No. DCA 160/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WHANGAREI on the 20th day of May 1998 APPEARANCE/COUNSEL CL Cook for appellant SR Condie for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON When this appeal came before me counsel agreed that the issue of reimbursement for the cost of taxis should be adjourned as the parties thought that a suitable compromise could be reached between them. I noted this position in the decision which issued as No. 117/98 on 3 June 1998. I have now been advised that the parties have been unable to agree on the question of the future cost of taxi fares and requested a decision from the Court. The appellant claims that she is entitled to the full cost of taxi fares from her home to various places of treatment because she lives 38 kilometres from town and there is no public transport service. The appellant's husband works in town and is left without a car when it is necessary for her to obtain treatment. The appellant submits that the respondent should pay all the reasonable costs involved in the appellant taking a taxi from her home to the place where she has to undertake treatment. The issue is governed by the Accident Rehabilitation and Compensation Insurance Act 1992. In so far as they apply to this appeal the regulations state: "4. Emergency transport by air - [(1) Subject to these regulations, the Corporation or exempt employer shall contribute to the costs of emergency transport by air for treatment of a claimant for personal injury, the lesser of - a) The amount charged to the Crown, the regional health authority, or licensed hospital for the emergency transport; or ( 6 ) The amount that would have been charged to the Crown, the regional health authority, or licensed hospital for the emergency transport if the transport had been provided for the claimant in respect of a condition that was not personal injury.] 5. Emergency transport by ambulance - [(1) The Corporation or exempt employer shall contribute to the costs of emergency transport by ambulance of a claimant for treatment for personal injury an amount equal to the lowest amount that would have been payable by any person with whom the ambulance operator had a contract or arrangement for emergency transport if the transport had been provided in accordance with the terms of that contract or arrangement.] 6. Other transport - (1) Subject to these regulations, where a claimant requires transport for treatment for personal injury that is not emergency transport by air or emergency transport by ambulance, the Corporation or exempt employer shall contribute to the costs incurred by the claimant - (a) An amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available scheduled public transport; or (6 ) Where there is no scheduled public transport, an amount calculated at the rate of 50 cents per kilometre - irrespective of the means of transport actually adopted by the claimant." While Ms Cook has not provided any submissions in relation to this issue, I agree with Mr Condie's submission that it may be that there is no right of appeal regarding this issue because the claim is for future travelling costs and does not relate to a decision of the respondent in respect of a particular claim. Notwithstanding that submission it is quite clear from the regulations that there is no discretion given to the respondent in relation to transport which is not for emergency purposes. The requirement under Regulation 6 is clear and unequivocal that the respondent's duty is limited to the contribution of an amount equivalent to the lowest fare payable for the journey on whichever is the cheapest of any available 3 scheduled public transport or where there is no scheduled public transport to an amount calculated at the rate of 50 cents per kilometre "irrespective of the means of transport actually adopted by the claimant". While the regulations have been amended to increase the rate per kilometre to 55 cents, the position remains the same that if there is no public transport available between the appellant's home and the source of treatment the limit of the contribution which the respondent can make is 55 cents per kilometre travelled irrespective of the means of transport adopted by the appellant. As I have already said, I consider that there is no jurisdiction for me to issue a decision but the explanation of the position, should it arise, may assist the parties in completing this longstanding issue. DATED at WELLINGTON this 12 th day of February 1999 A W Middleton District Court Judge Deal6097.doc(rd)