Brown v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 23 195 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN M BROWN as guardian of $4 94 2036 H V BROWN Appellant (Appeal No. DCA 201/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent NAME OF APPELLANT NOT TO BE PUBLISHED DECISION OF JUDGE D A ONGLEY This appeal is heard on the papers with the consent of the parties. The question is whether an election to receive lump sum compensation can be made after the date specified in s 147 of the Accident Rehabilitation and Compensation Insurance Act 1992. There have now been a number of decisions concerning the effect of's 147 of the Act, including Black (66/94), Demus (71/94), McDermott (4/95) and others. The common conclusion reached in these decisions is that where no written application for lump sum compensation under the earlier Accident Compensation Acts has been made before 1 April 1993 and no election has been made by 31 March 1993 to receive lump sum compensation instead of an independence allowance, then lump sum compensation shall not be payable. In this particular case there is no dispute that the Corporation sent to the appellant a notice requiring an election to be made and the appellant received the notice. The appellant's daughter had suffered personal injury by accident in 1991 when she was aged only three years. The claim was lodged by her parents. When they received the notice requiring election they said they contacted the Corporation and were told that the assessment would not be done until a final report was available from counsellors. There - 2- is some evidence that they were told by Corporation staff that they need do nothing further, but that is not clear. It does not affect this appeal but could only be relevant if the appellant alleged in civil proceedings that the Corporation had given negligent and incorrect advice. Under the Act the responsibility to make an election lies entirely on the claimant. The fact that the respective compensation amounts is unknown is not a reason for not making an election and there is no provision for making an election out of time. It should be mentioned that other cases where appeals have been refused involved claimants who had never received advice from the Corporation of the need to make a lump sum claim and an election by the specified dates. This appeal is of course less compelling than those other cases, but in principle there is no difference. Section 147 of the Act prevents the Corporation from making any lump sum payment unless the application and the election are made. This appeal is therefore dismissed. DATED at WELLINGTON this q day of March 1995 D A Ongley District Court Judge