WILLIAM BOSMAN V ACCIDENT COMPENSATION CORPORATION CA CA191/06

WILLIAM BOSMAN V ACCIDENT COMPENSATION CORPORATION CA CA191/06 2 November 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA191/06 [2007] NZCA 482BETWEEN WILLIAM BOSMAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 26 July 2007 Court: William Young P, O'Regan and Arnold JJ Counsel: J M Miller and T Fong for Appellant I R Millard QC and P McBride for Respondent Judgment: 2 November 2007 at 11.30 amJUDGMENT OF THE COURT A We answer the question posed in the case stated as follows: Question: Whether s 149 applies to [the appellant] when throughout the period from [his] accident to immediately before the 1st day of July 1992, and for some time thereafter, he was in hospital, being cared for by doctors and nursing staff there. Answer: On the factual basis set out in the question, and on the basis that there is no evidence that the appellant was entitled to compensation under s 80(1) or (2) of the 1982 Act prior to 1 July 1992, the answer is: "No". B There is no order as to costs.REASONS OF THE COURT(Given by Arnold J)Introduction[1] This appeal, which comes to the Court by case stated, concerns whether the appellant's claim for compensation is to be assessed under the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act) or the more generous provisions of the Accident Compensation Act 1982 (the 1982 Act). The answer depends on the operation of s 149 of the 1992 Act.Background[2] The appellant was involved in a devastating motor cycle accident in May 1992. He suffered very serious injuries. He was hospitalised for two months, being discharged on 10 July 1992. The extent of his injuries was such that, after he was released from hospital, he required full time care at his home. [3] The appellant's claim for cover under the 1982 Act was lodged on 25 May 1992 some two weeks after the accident. At that time the 1982 Act was still in force. However, on 1 July 1992 while the appellant was still in hospital, the 1992 Act came into force. [4] Section 80 of the 1982 Act provided as follows:Compensation for pecuniary loss not related to earnings –(1) Where a person suffers personal injury by accident in respect of which he has cover the Corporation, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury , not being—(a) Any expense or loss in respect of damage to or diminution in value of property (whether real or personal, tangible or intangible, or movable or immovable) or any estate or interest in such property; or (f) Any loss that has not for the time being actually occurred, whether or not the amount thereof is ascertainable before it occurs; or (g) Any expense or loss in respect of or towards payment of which compensation is otherwise payable under this Act whether or not any such compensation is actually paid; or (h) Any expense or loss which the Corporation considers is similar in nature to an expense or loss for which compensation is payable under any other provision of this Act, whether or not any compensation is actually paid under such other provision. (2) Where a person suffers personal injury by accident in respect of which he has cover the Corporation, having regard to any other compensation payable, may— (b) Pay to any person such compensation as the Corporation thinks fit for any identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person while he is suffering from incapacity resulting from the injury . (3) Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.[5] The injuries suffered by the appellant were such that he required constant personal attention. The appellant says that he had cover under s 80(3) at the relevant time by virtue of the transitional provisions of the 1992 Act, in particular ss 135, 136 and 149. [6] Section 135 of the 1992 Act provided:Relationship of this Act and former Acts—(1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1982 suffered before the 1st day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act. (3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1982 before the 1stday of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the 1 st day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed. (4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act.[7] Section 136(1) provided:Rehabilitation after 1 July 1992—(1) Subject to section 149 of this Act, the entitlement to rehabilitation of any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1982 shall be determined under this Act as if that personal injury by accident was personal injury covered under this Act.[8] Finally, s 149 of the 1992 Act relevantly provided:Compensation for pecuniary loss not related to earnings—(1) Where any person was receiving or entitled to receive any compensation under section 80 of the Accident Compensation Act 1982 immediately before the 1st day of July 1992, that section shall continue to apply to payments in respect of that person until the 31st day of December 1992 as if those sections had not been repealed. (2) The reference to the 31st day of December 1992 in subsection (1) of this section shall be read as the 30th day of June 1993 in respect of compensation under section 80 of the Accident Compensation Act 1982 that is compensation in respect of—(a) Provision of attendant care (being personal care and mobility assistance necessary for the injured person); or (b) Household help (being provision of assistance in respect of domestic activities that would be performed by the injured person if not injured and is necessary to enable the person to remain in or take up suitable residence); or (3) Notwithstanding subsections (1) and (2) of this section, where any person was receiving compensation under section 80 of the Accident Compensation Act 1982 in respect of attendant care (being personal care and mobility assistance necessary for the injuredperson) at a weekly rate of $350 or more immediately before the 1st day of July 1992, those sections shall continue to apply in respect of that person as if those sections had not been repealed and the entitlements in respect of the person may be reassessed from time to time under those sections. [9] The effect of this provision was that all entitlements under s 80 would continue until 31 December 1992 (s 149(1)), compensation for specified matters under s 80 would continue until 30 June 1993 (s 149(2)) and compensation for attendant care under s 80 which was received at a weekly rate of $350 or more would continue indefinitely (s 149(3)). [10] When the appellant went home after his discharge from hospital on 10 July 1992 he applied for attendant care. He was assessed and paid the relevant entitlement under the 1992 Act and Regulations. [11] On 5 January 2004 the Corporation issued a decision in which it said that the appellant's entitlement to attendant care compensation had been underpaid during the period 10 July 1992 to 1 October 2000. The total arrears were calculated at $375,143.00. The Corporation calculated the appellant's entitlements for the period 10 July 1992 to 19 September 1994 in accordance with various sets of regulations applying at particular time periods. The appellant sought a review of this, but the review was ultimately withdrawn so that the Corporation could reconsider the position. [12] The Corporation issued a further decision on 12 August 2004. It said that the appellant's attendant care and home help entitlement for the period 10 July 1992 to 19 September 1994 was calculated on the basis of appellant's assessed need under the 1992 Act and various regulations and confirmed the quantum set out in the 5 January 2004 decision. [13] The appellant considered that he was entitled to further compensation under the more generous provisions of the 1982 Act and applied to review the Corporation's decision of 12 August 2004. The essential issue on the review was whether, as a result of the transitional provisions, the Corporation was obliged to calculate the appellant's entitlement to compensation under s 80(3). By decisiondated 9 December 2004 the reviewer dismissed that application. The appellant then appealed to the District Court. Judge Ongley dismissed his appeal on 22 April 2005. [14] The appellant appealed from that decision to the High Court, where Miller J dismissed the appeal: HC WN CIV 2006-485-766 5 July 2006. The appellant then sought leave from the High Court to appeal to this Court, which Wild J granted: HC WN CIV 2006-485-766 30 August 2006. [15] The question which Miller J formulated in the case stated for determination by this Court is:Whether s 149 applies to [the appellant] when throughout the period from [his] accident to immediately before the 1st day of July 1992, and for some time thereafter, he was in hospital, being cared for by doctors and nursing staff there.Appellant's submissions[16] Mr Miller argued that the appellant was entitled to receive compensation within the meaning of s 80(3) of the 1982 Act as at 30 June 1992 even though he was in hospital at the time and his needs were being met through the health system. He said that there was a distinction, between on the one hand, an entitlement to receive compensation and on the other, the calculation of the amount of compensation payable, which could be "nil". He said that the appellant's entitlement to compensation had arisen before 1 July 1992 even though he could not have received any actual compensation for attendant care until after that date. [17] In support of this submission, Mr Miller argued that, as the appellant's claim had been made before 1 July 1992, the effect of s 135(3) and (4) was that the acceptability of his claim and his entitlements fell to be determined under the 1982 Act. He said that s 26(2)(a) of the 1982 Act provided "cover" under the Act. (Section 26(2)(a) provided that "[a]ll persons who suffer personal injury by accident in New Zealand shall have cover under this Act if the accident occurred on or after the 1 st day of April 1983".) "Cover" was defined in s 2 to mean "theentitlement which [the appellant] would have to rehabilitation assistance and compensation under this Act" (emphasis added). This, he said, made it clear that "itis the fact of suffering a personal injury that creates an entitlement to receive the appropriate entitlements under the 1982 Act and not whether care is actually given". [18] Further, Mr Miller pointed out that s 149(1) referred to an entitlement to anycompensation under s 80. This meant, he said, that if any compensation was available under s 80 prior to 1 July 1992, the section remained in force for all possible compensation available under it. He argued that as the appellant was out of hospital by 10 July 1992, well before the expiry of s 80 on 31 December 1992 under s 149(1), and he was in need of 24 hour attendant care, the Corporation could calculate and pay for such care at least until 31 December 1992 under s 149(1) and, for some types of compensation, until 30 June 1993 under s 149(2). Mr Miller said that although s 149(3) appeared to be limited to cases where the claimant had been receiving weekly compensation before 1 July 1992, Chambers J had inTaylor v Taite HC ROT M13/00 23 May 2002 adopted a more "robust" interpretation (at [28]):As at 1 July 1992, [the claimant] was not in fact receiving compensation under s 80 "at a weekly rate of $350 or more". But it is common ground that he should have been. The only reason he was not receiving compensation at a weekly rate of more than $350 was that the ACC was at that time misapplying the law. Clearly, therefore, since [the claimant] should have been receiving compensation at a weekly rate of $350 or more, he continued to be entitled to compensation under s 80 of the 1982 Act.[19] Mr Miller said that an even broader approach might be adopted in the case of the appellant. [20] Mr Miller also relied on the decision of this Court in Campbell v Accident Compensation Corporation CA138/03 29 March 2004. In that case the two claimants had both suffered injury as a result of medical misadventure. Both had cover under the 1982 Act although neither made any claim before the repeal of the 1982 Act. Their claims were lodged in 1994 and 1995 respectively, when the 1992 Act was in force. The Corporation accepted their claims and provided compensation for the constant attendant care which they required from the dates of claim. The Corporation declined to backdate the payments, however.[21] This Court was asked to determine whether, in terms of s 149(1) of the 1992 Act, the claimants were entitled to receive compensation under s 80 of the 1982 Act immediately prior to 1 July 1992. The Court said that they were. The Court summarised its conclusions as follows:[44] Based on our chronological analysis of the relevant legislation we have reached the following conclusions: 1. Immediately before 30 June 1992, the appellants were "entitled to receive compensation" under s 80(3) of the 1982 Act and were thus within the scope of s 149 of the 1992 Act. 2. Had they lodged applications before 1 October 1992, they would have been entitled to compensation under s 80 of the 1982 Act until 31 December 1992, a date which was later extended to 30 June 1993 [see s 149(2)]. 3. When they did not make application to the Corporation before 1 October 1992, they lost all entitlements under the 1982 and 1992 Acts; this by reason of s 63(2) of the 1992 Act. 4. With the retrospective amendment of s 63(2) which was made in 1995 to permit out of time claims to be considered and with their claims to be entitled to cover subsequently accepted, each has an entitlement to compensation for attendant care provided to them from when they were born down [1985 and 1989] to 30 June 1993. 5. Their entitlements to attendant care payments in respect of periods of time after 30 June 1993 but prior to when they first applied to the Corporation depends upon the interpretation of the 1993 Regulations, and this is not specifically before us for determination.[22] Finally, Mr Miller emphasised that the Act should be given a "generous and unniggardly interpretation" (Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 at 438 (CA) and Harrild v Director of Proceedings [2003] 3 NZLR 289 at [19] per Elias CJ and [130] per McGrath J (CA)).Discussion[23] As the question posed by Miller J in the case stated indicates, the critical section is s 149(1) and, in particular, the words "entitled to receive any compensation". Clearly, given those words, the application of s 149(1) does not depend on actual receipt of compensation. An entitlement is sufficient, but thatentitlement must have existed as at 30 June 1992. We consider that "entitlement" in this context means having a rightful claim to compensation. [24] As this Court noted in Campbell v Accident Compensation Corporationat [9], s 80(3) conferred a discretion on the Corporation, albeit one that had to be exercised on a principled basis. The Court said that the concept of "entitlement to claim compensation" in s 149(1) covered claims under s 80(3) even though a claimant's "right" to receive attendant care compensation under that subsection depended on the exercise by the Corporation of a discretion (at [23]). The Court noted that the effect of s 135 was that claimants who made claims before 1 October 1992 could receive cover under s 80, so that the lodging of a claim prior to 1 July 1992 was not a prerequisite to the operation of s 149(1) (at [25]). The Court said that the phrase "shall continue to apply to payments in respect of that person until the 31 st day of December 1992" in s 149(1) referred to payments referable to that period rather than actually received in that period (at [27]). But the critical feature of that case for present purposes is that the claimants received attendant care during the currency of the 1982 Act for which they were entitled to be compensated even though they had not in fact filed a claim at that time. [25] We consider that the appellant did not have an entitlement or rightful claim to attendant care compensation under s 80(3) prior to his release from hospital. Whether he was entitled to such compensation and, if so, in what amount were matters that had to be determined by the Corporation when it had all the relevant facts. These facts were only known once the appellant had been released from hospital. [26] We accept, consistently with Campbell v Accident Compensation Corporation, that a claimant might have had an entitlement to compensation under s 80(3) as at 30 June 1992 even though he or she had yet to make a claim and the Corporation had yet to exercise its statutory discretion to grant compensation. But that was not the position in the present case. Here the Corporation would not have known the relevant facts until the appellant was well enough to be discharged from hospital, at which point the Corporation could assess his needs and make a decision. If the Corporation determined that the appellant was entitled to receive attendant carecompensation, he would not have been entitled to have it backdated to cover the period that he was in hospital, when his needs were being met through the health system. [27] It follows that we do not agree with Mr Miller's submission that the appellant had an entitlement to receive attendant care compensation prior to 1 July 1992 but in a "nil" amount. Rather, we agree with Mr Millard QC's submission that the purpose of s 149 was to assist those who were receiving, or should have been receiving, payments under s 80 (including attendant care payments under s 80(3)) to transition to the new arrangements under the 1992 Act (with the exception of those receiving $350 or more per week under s 80(3), whose entitlement was preserved in the longer term by virtue of s 149(3)). The interpretation set out above is consistent with that purpose. [28] This does not, however, meet Mr Miller's other point. As we have said, Mr Miller submitted that if the appellant was entitled to receive any compensation under s 80 then s 80 in its entirety continued to apply to him. In other words, even if the appellant did not have an entitlement to receive attendant care compensation under s 80(3) immediately before 1 July 1992, if he was entitled to receive some other form of compensation under s 80 before that date (say, compensation under s 80(2) for the upkeep of the grounds at his house) then the whole of s 80 continued to apply to him. Mr Miller said that this analysis flowed from the language of s 149(1) (see [8] above). He submitted that the appellant must have been entitled to some form of assistance under s 80(2) prior to 1 July 1992 (for lawnmowing or paying of bills, for example) and, as a result, he was entitled to attendant care compensation under s 80(3). [29] We accept that the language of s 149(1) does not seem to limit a claimant's right to receive payments under s 80 to the particular entitlement that existed prior to 1 July 1992. It may be, then, that once a claimant established an entitlement to some compensation under s 80 prior to 1 July 1992, he or she would be able, after that date and for the period that s 149 permitted, to take the benefit of s 80 in respect of other compensation. In other words, if in relation to a particular claimant s 80 remained in force for some purposes, it remained in force for all.[30] We need not finally determine this point, however. We were not shown any evidence that demonstrated that the appellant did have some entitlement to other compensation under s 80 prior to 1 July 1992. In this respect, the present case is different from the situation of the two claimants in Campbell v Accident Compensation Corporation where their entitlement prior to that date was clearly established.Decision[31] Accordingly, we answer the question set out at [15] above in the negative. We make no order as to costs.Solicitors: John Miller Law, Wellington for Appellant McBride Davenport James, Auckland for Respondent