Prasad v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 267 /97 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 TANIA ROSCHNI PRASAD DCA 328/96 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 13th day of November 1997 APPEARANCES: Mr A Cadenhead for appellant Ms J A Goodall for respondent DECISION OF JUDGE M J BEATTIE The issue for determination in this appeal is whether the appellant is a surviving spouse within the meaning of section 3 of the Act for the purposes of a survivor's grant and weekly compensation under sections 56 and 58 of the Act respectively. 2 Background Facts: The appellant was the lawful wife of Vishnu Datt Sharma. On 6 February 1996 Vishnu Datt Sharma, then aged 28 years, was killed in a motor accident. There was one child of their marriage, a daughter Shontelle aged 3 at the date of the deceased's death. That child was in the care and control of the appellant. At the time of the deceased's death the parties were living apart and had been living apart since about the 16th of February 1995. There was no formal deed of separation as such, simply an informal arrangement between the parties themselves. The parties were the joint registered proprietors of a house property at Ingoldsby Street, Christchurch, and this home was occupied by the appellant and the child Shontelle. There was a mortgage to the Post Office Bank Ltd and the mortgage payments were approximately $315.00 per fortnight. At the time of his death the deceased was employed as a printer by Sprint Print Lid and records from his employer show that for the four weeks preceding his death the deceased's weekly pay was $960.00. The deceased was making payment through the Child Support Service at a rate of $43.35 per month although the deceased had been assessed to pay child support from 1 April 1996 to 31 March 1997 at the rate of $296.00 per month. The appellant was in receipt of a domestic purposes benefit and had been so since 24 February 1995, the amount of that benefit being $550.00 per fortnight. By letter dated 4 July 1996 the Corporation advised the appellant that payment of a surviving child grant and weekly compensation for a 3 dependent of the deceased had been granted but that the surviving spouse grant and weekly compensation for spouse had been declined. The letter advised that it did not have any evidence that the appellant was living with or being supported by the deceased and that this was the reason for the declinature. The appellant sought a review of that decision. Relevant Statutory Provisions Section 56 of the Act provides for a survivor's grant of $4,000.00 to be paid to a surviving spouse of the deceased. Section 58 of the Act provides that weekly compensation shall be payable to a surviving spouse of the deceased. Section 3 of the Act provides a definition of spouse and that part of the definition which is relevant for the purposes of this appeal is that spouse in relation to a deceased person means "a person to whom the deceased was legally married immediately before his death but does not include any person to whom the deceased was legally married if they were living apart at the time of deceased person's death and the deceased was not contributing financially to the person's welfare." For the purposes of this appeal therefore, it is incumbent upon the appellant to establish on the balance of probabilities that at the time of his death her husband was contributing financially to her welfare. The Evidence Prior to the review hearing the appellant provided the Corporation with a statutory declaration and two letters of support. The statutory declaration by the appellant was as follows: 4 "1 . That for a period of approximately 1 year prior to date of death of Vishnu Datt Sharma mortgage payments on our jointly owned property at 20 Ingoldsby Street were at least $315.00 per fortnight. 2. That during this period I met all mortgage payments from my Post Bank Account. 3. That the said Vishu Datt Sharma continued to assist me with all expenditure relating to our jointly owned property including mortgage commitments. 4. That the financial support given under clause 3 above was paid largely in the form of cash and amounted to not less then half of the $315.00 required per fortnight." The letters of support were from the appellant's mother and sister respectively. Mrs Prasad stated as follows: "I Marion Prasad state that I do know Vishnu Sharma was giving financial support to his wife Tania. He was helping with the mortgage, insurances, and upkeep of the property as it was still in joint names. He also paid for her winter heating, fuel and gave her extra money for Shontelle's clothing etc." The sister's letter stated as follows: "I Sharan Jones make the following statement which I certify to be true. The late Vishnu Sharma was financially supporting Tania Prasad with mortgage and rate payments on their jointly owned property." = 5 Inquiries by the Corporation with New Zealand Income Support Service indicated that according to the appellant's file "It does not hold any information about any financial support from Mr Sharma". It is to be noted that prior to the Corporation's decision to decline to make payment to the appellant she had on 11 April 1996 made a statutory declaration in which she had stated inter alia that Mr Sharma was providing financial support in the form of a contribution of $152.00 per fortnight to the mortgage payments on their jointly owned home and was also providing support for their daughter through child support and by payment of approximately $30.00 per month in miscellaneous payments for their daughter including day-care fees. At the review hearing on 15 October 1996 the appellant and her mother attended. The appellant was not represented. The evidence given by the appellant was as follows: Ms Prasad stated that the initial agreement she had with her husband was that he had to pay half the mortgage as the property was in their joint names. She applied for the domestic purposes benefit because she had hire purchase commitments and when she received the DPB, it was paid into her Post Office Account. The mortgage was payable fortnightly and deducted from that account and amounted to, between $304.00 and $315.00 per fortnight depending on the interest rate at the time. Mr Sharma paid her cash at least $150.00 per fortnight depending on the amount of overtime and she kept the cash as the mortgage payments were coming directly out of her bank account. She said further that he also paid for coal in the winter time and contributed to payment of the rates. He also paid half of Shontelle's day- care centre fees. 6 It is noted that this evidence was adduced by the Review Officer in the form of question and answer and I note that whilst the appellant's mother was present and had provided a written statement previously as mentioned above, the Review Officer did not deem it necessary to question her further on that statement. From that factual matrix the Review Officer gave his decision as follows: "While Ms Prasad and her mother gave evidence that Ms Prasad's former husband contributed financially this was always in cash with no documentary records. At the review hearing I asked Ms Prasad to provide her bank statements. While these disclosed that Ms Prasad continued to pay the mortgage they did not provide any assistance in determining whether or not Ms Prasad's husband had been providing financial support to her prior to his death. While there appeared to be other deposits around the mortgage repayment times these did not equate to half the mortgage i.e. approximately $150.00. Similarly while there was various evidence on the file and given at the review hearing by Ms Prasad that Ms Prasad's former husband also provided various cash payments for coal, rates, redecorations, and insurances, there is no documentary evidence in support of this. The burden of proof in this jurisdiction is not onerous but on the balance of probabilities. I am not satisfied on the balance of probabilities that there is sufficient evidence to confirm that Vishnu Sharma provided financial support to his wife prior to his death such that Ms Prasad is entitled to the survivor's grant and weekly compensation. That application for review is declined." 7 For the purposes of this appeal the facts are there as found by the Review Officer at the review hearing, or previously having been determined by the Corporation in its inquiries leading up to its initial decision to decline. The decisions made, firstly by the Corporation, and secondly by the Review Officer were simply that the appellant had not given sufficient evidence to establish that the deceased was contributing financially to her welfare. No where in the course of correspondence with the Corporation or in the Review Officer's decision is there any suggestion that the appellant was not considered to be a truthful or a credible witness. In view of the finding which I make that hitherto there have been no findings of credibility of the witnesses or of the veracity of the evidence given, it is therefore open to this Court to come to its own determination of the issue on those uncontroverted facts. As the Review Officer had no reason to disbelieve the appellant, neither can this Court and the essence of her evidence is that she was receiving regular financial support from her husband in the form of payment of half the mortgage. The payment of this mortgage was essential for the welfare of the appellant in that it was securing the home for she and their daughter. I find that payment of monies towards the mortgage is more than sufficient to be classified as a financial contribution towards the spouse's welfare. It would be the same situation if the deceased had been paying a share of the rent were they living in rented accommodation. In addition to that, there is the position of the deceased contributing towards the daughter's day-care costs. That day-care is obviously designed and intended both for the benefit of the child and as some of relief for the appellant from the 24 hour per day care of their child and must similarly be regarded as being for her welfare. 8 The decision of the Review Officer in this case is frankly surprising and it seems to stem from a mind set, carried over from the view taken by the Corporation's advocate, that unless a person can produce some documentary evidence to corroborate their testimony that testimony alone will not be sufficient. Such has never been the case in Courts in this country and certainly should not be the case in review hearings under the ARCI Act 1992. Even a commonsense approach would surely have considered it not unusual for a husband to provide his wife with cash as the means of paying her for his share of their shared obligations. The mere fact that it does not go from bank account to bank account as would seemed to be the minimum expected by the Review Officer is simply not addressing reality. Accordingly, I have no difficulty in finding that the appellant has discharged the onus on her to establish that the deceased was contributing financially to her welfare at the time of his death and that she is thereby entitled to receive the benefits provided by sections 56 and 58 of the Act. The decision of the Review Officer is revoked and I award the appellant $800.00 costs. DATED at WELLINGTON on this 18 day of December 1997 the M J Beattie District Court Judge Prasad.doc(gm)