Fournier v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 199 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LOIS ANNE FOURNIER of Auckland Appellant (Appeal No. DCA 121/97) 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 appealed against the decision of this Court issued by Judge P F Barber on 17 December 1997 under number 265/97. The issue before the Court was whether the respondent was correct to decline to pay for the appellant's remedial hip operation performed on 2 February 1996 on the grounds that the appellant had failed to apply for the respondent's prior approval to the procedure. In the course of submissions to the Court the appellant referred, in particular, to the decisions of ABC 5 v ARCIC [1996] NZAR 433 and ARCIC v Walsh (1996) 1 BACK 250 a decision of Justice Salmon in the High Court. In his decision Judge Barber considered that he should follow the decision of the High Court in Walsh in which it was held that Regulation 11(1) of the Accident Compensation (Specialists Costs) 2 Regulation (No 2) 1990 had to be interpreted strictly and it did not provide for any possible discretion to depart from the strict terms. In submissions in support of this application, the appellant's counsel, Mr K Reid has submitted that Judge Barber should have been guided by the emergency nature of the appellant's situation and adopted the approach followed by the Judge in ABC 5 in which the Court had held that in cases of emergency there should be implied certain words which would preclude the need for prior approval. In submissions on behalf of the respondent, Mr A D Barnett has noted that the factual situation in ABC 5 and Walsh were similar and that the High Court in Walsh has established that the plain words of Regulation 11(1) do not give scope for the type of interpretation adopted in ABC 5. I agree with Mr Barnett's submission. The application for leave to appeal to the High Court is declined. DATED at WELLINGTON this || th day of September 1998 bounddubin A W Middleton District Court Judge dca12197.doc (nr)