Jakeman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 77/ 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 LOUISE JAKEMAN of Auckland Appellant (Appeal No. DCA 264/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of April 1997 APPEARANCES P J Recordon for appellant A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to the payment for attendant care backdated to the date of her son Koby's birth. The respondent acknowledges that when Koby was born on 23 April 1991 he suffered spastic quadriplegic as a consequence of a medical mishap which the respondent accepted for cover in January 1996. The appellant lodged a claim in respect of the injury in January 1995. In February 1996 the respondent arranged for the assessment of Koby's attendant care needs in terms of the Attendant Care Regulations and the amount has subsequently been fixed and is being paid. The issue before the Court is whether the 2 appellant is entitled to a backdating of the payment for attendant care to the date of his accident, being the date of his birth. After the respondent made its decision to decline to backdate the payment the appellant applied for a review of that decision and raised the issue of whether or not the appellant was entitled to have the claim considered under the provisions of the Accident Compensation Act 1982. The evidence given before the review officer and accepted by him was that the appellant was an employee in the respondent's office prior to 1 July 1992. She apparently had a conversation with a senior officer in the respondent's office in which she indicated that she proposed lodging a claim in respect of Koby's medical mishap, but was apparently advised by that officer that she thought the claim would not be successful. She apparently therefore did not lodge a claim until January 1995. The appellant explained to the review officer that as a result she and her son have been disadvantaged by the erroneous advice given to her by the senior claims officer. The appellant's application before the review officer was declined because the review officer held that s. 135(3) was applicable and as the claim had not been lodged before 1 October 1992 it had to be considered under the 1992 Act. It is against that decision which the appellant has now appealed. In support of her appeal the appellant has submitted a statement from the claims supervisor who was mentioned in her evidence before the review officer. In that statement the former claims supervisor has said: "Louise asked my advise (as a friend who was in the profession) on her eligibility of a claim for medical misadventure. From the discussion I advised it would be unlikely to be a successful claim unless the 'doctors' concerned admitted causing error during Koby's birth. From memory, this would be due to the expected risk incurred at all births. I do not recall the exact time or complete details, but the conversation would have occurred early 1992.." Mr Recordon submitted that as the appellant had discussed a claim with the Senior Claims Officer she had taken steps to lodge a claim before 1 October 1992 and had intended lodging a claim. He submitted that while the word "lodge" is not defined in the legislation he submitted that the Oxford dictionary describes "lodge" as "submit (complaint) for attention". Mr Recordon submitted that the appellant had been given bad advice after she had submitted her claim for attention and that the respondent was under a duty to advise her of her options and rights under the 1992 legislation. He submitted she was advised not to claim formally and had been told that there was no point in claiming unless a doctor was prepared to admit causing an error. Mr Recordon submitted that the events constituted an oral application for cover and that the appellant had raised this issue with her doctor which he had recorded in his report. He concluded his submissions by saying: "It is clear that compensation is in terms of the purpose of the Act to compensate and rehabilitate. The child has a severe permanent disability. It is not certain but 3 more likely than not that the disability was the result of a difficult labour and birth. Mother was told there was no point in filing (formally) a claim under the 1982 Act. She should have been told to file for medical misadventure and also for 'accident'. Given the disability and the object of the Act justice and equality of justice dictates that this child should have the same benefits as would have been his entitlement had he claimed under the 1982 legislation. There is no logic or fairness treating this child differently from other children with similar disability." Mr Barnett submitted that in order to gain access to the transitional provisions of the 1992 Act s.135(3) requires that the claimant has "lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992". He referred to the question of lodgement of a claim under the 1982 Act which is governed by s.93(2) which requires: "every such notice shall be given in writing, and shall state the nature and cause of the injury and the date, time, and place at which the accident happened." He submitted that it is clear that a claim has to be submitted in writing. In support of his submissions Mr Barnett referred to the decision of Judge Kerr in Bennett v ARCIC (9/94) in which it was held that "even although a claim in writing for an accident causing a nose injury in 1989 had been made this did not amount to a claim for a tooth injury arising out of the same event as the fact of the tooth injury was not notified until after 1 October 1992 there is no claim pursuant to s.93 for the tooth injury." Judge Kerr said "whilst the Corporation knew of the accident, it did not know of the injury until the 1992 Act was in force." The Judge considered that there was insufficient notification of the tooth injury inspite of the fact that there was a written application for the accident which caused the tooth injury. In relation to the provisions in regard to lodging a claim Mr Barnett referred to the decision in Leatham (9/96) in which the Court held that the words "lodged with the Corporation" in s.135(3) "must be taken in the ordinary meaning and that this is that the application must be physically lodged with the Corporation". Mr Barnett submitted further that as was held in the decision in Arts (75/96) there is no obligation on the Corporation to inform claimants of possible available benefits. I do not accept Mr Recordon's submissions. It is quite clear that while the appellant did discuss her position with a claims supervisor and accepted her advice not to file a claim this cannot amount to an oral notice of a claim sufficient to bring the appellant within the provisions of s.93(2) of the 1982 Act. The words of that section are quite explicit that the "notice shall be given in writing". It follows that therefore the appellant did not lodge a claim with the respondent before the Ist day of October 1992 so that she is not entitled to the benefit of the provisions of the 1982 Act. Because of the failure to lodge the claim before 1 October 1992 the issue falls to be decided under the 1992 Act. While Mr Recordon has submitted that as a matter of equality of justice the appellant's son should receive the same benefits as he would have had under the 1982 legislation, I cannot accept that submission as there is no discretion which 4 permits the respondent or this Court to go beyond the strict requirements of the 1992 Act. I consider that the failure to lodge the application before 1 October 1992, albeit that that was done on the advice of a claims supervisor, does not take the appellant's position outside the scope of the Act and the appeal must be dismissed. DATED at WELLINGTON this 29th day of April 1997 A W Middleton District Court Judge de264-96.doc(rd)