Rawiri v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 92 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act $2 94 0001 . BETWEEN PETER TEREWAI RAWIRI of Te Awamutu Appellant (Appeal No. DCA 283/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of August 1995 APPEARANCES Appellant in person A D Fawcett for respondent DECISION OF JUDGE A W MIDDLETON The appellant is a Prison Officer whose dentures were broken when he was assaulted by a prison inmate on 26 May 1994. He lodged a claim for cover with the respondent on 13 June 1994 for a contribution towards the costs of repair or replacement of the dentures. On 23 September 1994 the respondent advised the appellant that pursuant to the Accident and Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992, it was not able to make any payment because dentures were not on the list of aids for which it was permitted to make payment. The appellant applied for a review of the respondent's decision and the Review Officer confirmed the Corporation's original decision. The appellant submitted that his job requires him to wear dentures which he has had for 34 years. He said that the possibility of similar assaults is something for which persons in his profession must always be aware as it is a high risk job. He submitted that it is not possible to anticipate when someone might hit him and that, as in this case, when the dentures were broken in this way, he suffered an accident for which he should be compensated. Mr Fawcett referred to s.8 of the 1992 Act which provides that the Act applies in respect of personal injury occurring in New Zealand on or after 1 July 1992 in respect of which there is cover under the Act. Section 4 defines personal injury, inter alia, as being "physical injuries to a person". Mr Fawcett referred me to the decision in Batt v ARCIC (89/94) which is now subject to an appeal to the High Court, but in which Judge Ongley concluded that the 1990 Dentists Costs Regulations (No. 2) made no explicit distinction between natural and artificial teeth. He concluded that as the appellant in that case had suffered damage to her dentures during an assault, she was entitled to cover under the 1992 Act. Mr Fawcett submitted that the Judge in that case had erred by extending the meaning of bodily injury beyond the scope of the provisions of the 1992 Act. He submitted that the appellant in this case had suffered no physical injury and that the only damage was damage to false teeth. Mr Fawcett referred me to Green v Matheson [1989] 3 NZAR 564 where it was said at page 571: 'In the context of an Act dealing with compensation for personal injuries, it is obvious that "personal injury by accident" refers to a mishap causing harm to the person" (emphasis mine) Mr Fawcett submitted that while Judge Ongley had concluded that that appellant had suffered personal injury when the damage to the dentures happened while they were being worn, if they were not being worn, damage would have to be regarded as property damage. He submitted that that distinction was artificial on the grounds that an item is either property or it is not. Mr Fawcett submitted that whatever the position regarding personal injury, the respondent is limited in the contribution it can make to the costs of replacement dentures to the extent permitted by the regulations under the Act. He submitted that under the schedule to the Accident Compensation (Dentists Costs) Regulations (No. 2) 1990, the respondent is to pay the cost of treatment provided by a dentist to any claimant in respect of personal injury to the extent specified in the schedule to the regulations. The schedule does not provide for replacing full upper and lower dentures. Furthermore, regulation 7 of the Accident and Rehabilitation and Compensation Insurance (Social Rehabilitation - Aids and Appliances) Regulations 1992, provides that no payment shall be approved under those regulations for the purchase of an aid or appliance of the kind specified in the Third Schedule to those regulations. Prosthetic devices are specified in the schedule and as dentures are a prosthetic device, no payment can be made for them. I agree with Mr Fawcett's submission that as it was the appellant's dentures only which were damaged, this did not constitute personal injury to the appellant within the context of the Act. While I am sympathetic to the appellant's claim that he has been wearing dentures since he was 16 or 17 years old, and they are necessary for his well-being, I must have regard to the wording of the Act. I am also sympathetic to Judge Ongley's finding in Batt because it does seem to create an injustice when a person who is required to wear false teeth and has them damaged in an assault cannot obtain a replacement, where a person who has natural teeth, are damaged in the same situation, can. However, I consider that Mr Fawcett's submissions are correct and that the provisions of the Act and the Regulations do not permit the respondent to pay for the cost of repair to his dentures. This appears to me to create an injustice, as I have said, and it may be a matter which can be considered when the Regulations are reviewed. The appeal is dismissed. DATED at WELLINGTON this 2and day of August 1995 brownadubin A W Middleton District Court Judge dc283-94.doc(mh)