Cook v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2015] NZACC 316 AI 138/09 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 162 OF THE ACT BETWEEN S COOK Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers Judgment: 22 October 2015 JUDGMENT OF JUDGE D J SHARP 1] This is an application for leave to appeal a judgment of Judge Beattie delivered 16 June 2010. Judgment appealed [2] His Honour Judge Beattie was required to determine whether Mr Cook qualified under the Act for the payment of weekly compensation for loss of potential earning capacity. [3] The loss of potential earnings was claimed following accepted cover for personal injury, namely a Hepatitis C infection caused my medical misadventure (a contaminated blood transfusion). Cover was provided under s 20(2)(c) of the 2001 Act. The claim for cover for the medical misadventure was made in June 2004 and accepted on 7 March 2005. [4] Issuing its decision, the Corporation applied s 38, as it then was, to determine the deemed date of injury, namely 21 August 1995. Once the appellant had the accepted cover for medical misadventure he applied for loss of potential earnings in November 2005. There is no dispute that if the correct date for injury is 21 August 1995, the appellant is not a "potential earner" and thus does not qualify for loss of potential earnings. [5] The appellant advances two arguments with the end purpose of establishing a date of injury in 1977 at which date the appellant would be a "potential earner " and thus if established he would be entitled to loss of potential earnings. [6] Firstly the appellant maintains that he has cover for an alleged injury caused by the motorcycle accident in 1977 relying upon s 317(7)(a) and s 20. [7] The appellant argues section 20 of the Act does not require a claim for cover. What s 20 provides is that a person has cover for personal injury caused by accident to the person, s 20(2)(a), or s 20(2)(b) as a consequence of treatment s 22(2)(d) or by reason of a disease consequential upon a treatment injury under s 20(2)(g), inter alia. The appellant argues that provided there is an absence of rejection of a claim by ACC an individual may have cover. [8] The argument is that the Act provides a general latent protection which may be crystalised by a claim for cover. [9] The second argument of the appellant is that upon consideration of s 38 of the Act, suffering the symptoms of Hepatitis C in 1978 provides circumstance of cover. The present s 38 would set that as the date for cover even if the tests were not available then to diagnose that condition. The appellant suggests the current provision should apply. [10] This argument relies on the present s 38 as being the test to be used when one is now considering the definition of a potential earner. [1 1] Section 48(c) stipulates that a person who wishes to claim under the Act 'must' lodge a claim for cover. Entitlements are only available 'once the corporation has accepted cover for personal injury'. In the present case the accepted cover for 'personal injury' is not for Hepatitis C per se, but Hepatitis C by medical misadventure. [12] Section 317 provides for a statutory barrier against bringing common law proceedings for damages arising direct or indirectly out of personal injury covered by the Act or former Acts, s 317(7)(a) provides: "nothing in this section is affected by - (a) the failure or refusal of any person to lodge a claim for personal injury of a kind described in s (1)". [13] Section 317(7) does not provide cover, it provides a barrier to actions. The statutory bar on common law proceedings cannot be circumvented or defeated by simply not applying for cover. 14] Section 20 provides for what is covered by the Act but does not provide the appellant 'accepted" cover. It is accepted cover which is a precondition for entitlement. The appellant must apply for and have cover accepted, and then only on that accepted cover can he have an entitlement. [15] There is a fundamental and crucial distinction between unclaimed cover on one hand and on the other hand "claimed and accepted" cover. [16] For leave to appeal to the High Court the threshold requirement is that there must be a question of law capable of serious and bona fide argument. [17] The matters set out above are matters of statutory interpretation. It is necessary to consider the appellants arguments to determine whether or not they are capable of serious and bona fide argument. The appellant argues that the date of injury could be taken from the day of the motorcycle accident in 1977 even though he had not made a claim for cover at the time. [18] His Honour Judge Beattie determined at paragraph [16] in reference to the appellants argument "this submission, I find is wholly against the basic principle of the Act, that entitlements can only be provided for personal injury which has been accepted as being covered under the Act". Accordingly in the absence of accepted cover the suggestion that a latent right to compensation existed runs to contrary to the statutory framework of the Act. The argument proposed by the appellant cannot meet the test of being capable of serious and bona fide argument. [19] The second argument advanced for the appellant is reliant upon the amended provisions of s 38. Section 38 as substituted on 1 July 2005 produced treatment injury "in place of medical misadventure". A review of this provision shows that it cannot apply. Section 34(2) provides the claim for misadventure lodged before 1 July 2005 "must be determined under the relevant provisions in force immediately before I July 2005". Accordingly the appellant is endeavouring to base an argument on a provision that the Act clearly says cannot apply. [20] The respondent argues that even if the substituted s 38 could apply Judge Beattie found on the facts that it would not assist the appellant in establishing an earlier deemed date of injury. The respondent refers to paragraphs [31] to [33] of His Honours decision. His Honour was not satisfied on the evidence that the appellant first sought or received treatment for the symptoms of Hepatitis of C in 1978. The respondent also adds that while it accepted that the appellant did receive a contaminated blood transfusion (and accordingly suffered medical misadventure) it has not been established that the contaminated transfusion was any part of the treatment for the alleged physical injury suffered in a motorcycle accident in 1977. A claim for cover on this basis was made subsequent to the decision of His Honour Judge Beattie and was declined by the Accident Compensation Corporation. [21] Accordingly firstly there is a statutory provision preventing the application of s 38 as amended. Secondly even if the amended s 38 were able to be applied there is a factual finding made by His Honour Judge Beattie that prevents application of the amended provision and thirdly there is no apparent link on a factual basis between the motorcycle accident in 1977 and the accepted medical misadventure on the facts found in the District court decision. [22] Accordingly in respect to both grounds upon which leave to appeal is sought there is no question of law raised which is capable of bona fide and serious argument and the application is dismissed. The solicitors who filed the submissions on behalf of the applicant have sought leave to withdraw from the proceeding this application is granted. [23] There is no order as to costs. Judge DJ Sharp District Court Judge