JAMES ALGIE AND ORS DECISION

Transcription

1 [2013] NZACA 1 ACA 02/11 IN THE MATTER of the Accident Compensation Act 1982 AND IN THE MATTER BETWEEN of an appeal pursuant to s.107 of the Act JAMES ALGIE AND ORS Appellant AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY R Bedford HEARING at Wellington on 7 & 9 November 2012 APPEARANCES/COUNSEL Mr J Miller for appellant Mr P McBride for respondent Introduction DECISION [1] The appeal is brought as a form of class or representative action under the aegis of the named appellant and 20 other appellants in respect of retrospective claims for backdated attendant care payments under the 1972 and 1982 Acts. [2] At the Authority s direction, Mr Miller filed three Bundles of Documents to identify each appellant s date of accident, their age at the date of accident, their injuries and the rehabilitation and compensation each has received, plus applications and decision letters and review decisions. The Bundles contain information relating to 19 appellants in total. [3] Mr McBride filed a schedule commenting on each appellant and indicated that the Corporation did not accept that the information in the Bundles was an accurate and complete account of each individual appellant s circumstances. However, I have chosen to assume that the information that is the Bundles is accurate in so far as it goes and the information below is taken from documentation prepared by, or for the Corporation.

2 2 The appellants [4] Five appellants suffered personal injury by accident covered by the Accident Compensation Act 1972; the other 14 have cover under the 1982 Act. The injuries suffered involve traumatic brain injury; both traumatic brain injury and some form of paralysis; paralysis without a traumatic brain injury; traumatic brain injury and preexisting paralysis, and cerebral palsy birth injury. Some of the appellants have associated orthopaedic injuries and vision defects; one appellant has a below knee amputation. Compensation and rehabilitation assistance [5] The age of eight of the appellants at the date of injury should, on the face of it, have qualified them for payment of compensation for potential loss of earnings (LOPE), two under the 1972 Act and six under the 1982 Act. Mr McBride s Schedule indicates that LOPE has been paid to one appellant (Donavan U , Vol 1, Tab 3, aged six weeks at date of injury 29/10/88), but that no applications have been made for LOPE for the other seven appellants. The appellants injured as adults have received weekly compensation. Lump sums have been paid, as have treatment expenses. [6] One appellant first applied for rehabilitation assistance under the 1972 Act; four first applied under the 1982 Act; there are also three applications made after the Accident Rehabilitation and Insurance Compensation Act 1992 came into force, ten during the Accident Insurance Act 1998, and three during the Accident Compensation Act [7] Of the five appellants who made contemporaneous applications, their wives or mothers applied for compensation for loss of earnings suffered as a result of caring for the appellants, which was paid in most cases. The grandmother of one appellant (Estate of Corrin Harding , Tab 8 Vol 2, aged three and a half years at the date of injury 23/2/85), who was caring for him while his solo mother worked, applied for assistance with caring for Corrin and the Corporation paid for two hours attendant care per day from March 1991 to 30 June [8] Other rehabilitation assistance in the form of payment for transport to and from rehabilitation appointments, aids and appliances, treatment, housing and car modifications were applied for and provided and most appellants had an ongoing relationship with ACC administering their various rehabilitation and compensation claims. However, it is apparent that the Corporation did not carry out any attendant care assessments when the appellants were discharged from hospital and nor did it inform their caregivers of the rehabilitation assistance by way of attendant care that was available as part of the appellants cover under the 1972 and 1982 Acts. [9] The comment in the Estate of Corrin Harding claim, made in a memorandum dated 15 March 1991 by the case manager considering his grandmother s attendant care application in 1991, some six years after his accident, that The family has coped up to now. Not realising the benefits that ACC would consider, is an example of this. The Corporation had been involved in Corrin s claim from before his discharge from hospital and his needs were known; it had paid for Corrin s transport by taxi to and from rehabilitation since 1988; and, the case manager stated in her memorandum that Corrin needed 24 hour care.

3 3 [10] Another example is Antony Jones ( Tab 10, Vol 2, an adult at the date of injury 17/12/74), who began receiving earnings related compensation entitlements in December 1974, and he was awarded the maximum under s 119 of the 1972 Act, as his injuries were assessed at substantially more than 100%. Yet, as the memorandum from the Corporation to Mr Miller dated 23 May 2003 stated the first attendant care application was made in 2003, and It seems that for a period of almost 25 years, Mr Jones and his mother (his primary caregiver) fell through ACC cracks. [11] Most appellants applied for backdated payment for attendant care under the 1972 Act or the 1982 Act after the repeal of the 1982 Act, two of whom, Antony Jones for periods under the 1972 Act and Sara O Dwyer (S , Tab 12, Vol 2, birth injury at date of accident 2/3/92) for six months under the 1982 Act, appear to have been successful. In most cases, no formal assessments were carried out to determine whether the appellants were in need of constant personal attention under s 121(3) or 80(3) before the applications were declined on recommendations made by internal ACC file reviews. [12] The appellants applied for ongoing attendant care on a less than 24 hour basis under the post 1982 Acts in force at the time of application, which was provided in most cases, and significant payments on account of compensation and rehabilitation assistance have been made under the later Acts. For example, Richard Donavan began receiving attendant care in March 2002 at the start rate of 34 hours per week; Corrin Harding began receiving attendant care and home help in March 1991 which was paid up to his untimely death in 2003 at various rates, the highest being 70 hours per week; Sara O Dwyer began receiving attendant care in July 2003, at the rate of at the hours per week during the school term and hours per week during school holidays. The applications at Issue [13] All appellants have applied for compensation by way of backdated payment for unpaid attendant care performed by family members; the first applications were made under either s 121(2)(b) of the 1972 Act or s 80(2)(b) of the 1982 Act and when the decision in Estate of Simpson & Matthews v ACC 1 was delivered in 2007, which precluded payment for gratuitous care under those sections, the applications were made again by the appellants under s 121(1) and s 80(1). These are the applications in this appeal. [14] The standard form decision letters dated variously between 21 August 2008 and 15 September 2008, stated: ACC is able to consider compensation under s 80 of the 1982 Act as provided by s 376 of the 2001 Act. It is ACC s position that to have an entitlement to compensation under s 80(1) of the 1982 Act that (appellant) must have incurred an actual and reasonable expense or proved loss. ACC has reviewed the information it holds on (appellant) and considers that the evidence does not prove that he incurred any actual expenses or losses. If (appellant) or his family provides evidence that can establish an expense or loss was incurred ACC will reconsider their applications. 1 Estate of Simpson v ACC and Matthews v ACC NZCA 274 (heard in tandem)

4 4 Further, ACC is unable to consider entitlements to rehabilitation contained in part 3 of the1982 Act that was not provided for in the transitional provisions of the 2001 Act. [15] All appellants applied to review their decisions, which were amalgamated under the application for review of James Algie, the named appellant, and the resulting review was heard by John Greene in 2010, under the 1982 Act. Mr Greene, who heard many of the ss 121(2((b) and 80(2)(b) reviews has a specific, very restricted general warrant for hearing applications for review of decisions made under those sections and as directed to do by the Corporation in the warrant, he declined to make a decision and instead issued a report and recommendation under s 102(9)(b). 2 [16] By agreement between Mr Miller and Mr McBride, Mr Greene confined his consideration to the following issues: 1. Can a claim for gratuitous attendant care be made under s 121(1) of the 1972 Act and s 80(1) of the 1982 Act? 2. Can a claim for gratuitous care be made under the rehabilitation provisions of those two Acts? [17] Mr Greene found that the decisions declining retrospective care were correct, as there was no legal basis for the payments to be made, and recommended that the Corporation confirm the decisions. Although when s 102(9)(b) is applied this is the province of the Corporation, he also made an award of costs under s 102(15) and gave both parties the right of appeal to the Authority. [18] As provided for under s 102(11) by letter dated 12 July 2010, the Corporation made the review decision and confirmed its original decisions as correct in law and the costs awarded by Mr Greene, and gave the appellants the right of appeal to the Authority as required in s 102(12). The notice of appeal [19] Pursuant to s 101(12), the appeal is brought against the Corporation s review decision letter of 12 July 2010, on the general ground that it is contrary to the law in that the appellants are entitled to backdated compensation for attendant care under the 1972 and 1982 Acts. The issues on appeal [20] Despite the appeal being brought against the Corporation s decision made under s 102(11), Mr McBride initially challenged the jurisdiction of the Authority to hear an appeal from a report and recommendation under s 102(9) and asked for the appeal to be returned to the Corporation for a further decision. [21] The Corporation subsequently accepted that the Authority could hear the appeal, but in his first written submissions Mr Miller elected not to pursue the s 80(1) claim and argued only the claim under ss 36 and 37 of the rehabilitation provisions and the power to pay attendant care beyond the repeal of the 1982 Act. The 2 Mr McBride provided a copy of Mr Greene s warrant after the telephone conference in February 2012.

5 5 Corporation then filed a formal Protest to Jurisdiction withdrawing its original acquiescence to the Authority s jurisdiction which was made in respect of the 1982 Act only, and I made a direction excluding any claims for compensation that fall to be considered under the later legislation and limiting the issues to those that properly arise under the 1972 and 1982 Acts, subject to any transitional provisions that provide for the continuation of entitlements. [22] The Corporation withdrew its protest and Mr Miller reinstated the s 80(1) argument, which leaves the issues agreed before Mr Greene as the primary question to be resolved, namely, can a claim be made for gratuitous attendant care under the rehabilitation provisions and/or ss 121(1) and s80(1) of the 1972 and 1982 Acts? [23] At various stages of the proceeding Mr McBride raised other objections based on the powers available to the Corporation under the 1982 and 2001 Acts and the jurisdiction of the Authority to hear any appeal relating to a payment made while the 2001 Act is in force. As the Corporation accepted the jurisdiction of the Authority to hear the appeal, this leaves only the second question to be resolved, namely, does the Corporation now have the power to make the backdated payments for the period covered by the 1972 and 1982 Acts as claimed by the appellants? The 1982 Act [24] Section 80(1): Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of injury so suffered, 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, or his dependents, 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 (g) (h) Any expense or loss in respect of or towards payment of which compensation is otherwise payable under this Act, whether or not compensation is actually paid; 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. 3 [25] Section 2: Compensation means any compensation or benefit to be paid or provided by the Corporation under sections 59 to 82 of this Act. Cover, in relation to any person means the entitlement which he, or his dependents, would have to rehabilitation assistance and compensation under this Act if he suffers personal injury by accident or dies as a result of the injury so suffered; ( rehabilitation and rehabilitation assistance are not defined). 3 Section 121(1) is identical to s 80(1), except that there is no subs. (h); all other sections and definitions are substantially similar in the 1972 Act, and counsel adopted the 1982 Act for their submissions.

6 6 [26] Section 8(1) gives the Corporation such functions and powers in relation to the Administration of the Act as are conferred upon it by the Act, and such further powers, not inconsistent with the Act, as are reasonably necessary for the effective performance of its functions. [27] Section 9(2)(a) provides that the functions and powers of the Corporation include payment of all compensation, costs and rehabilitation assistance in accordance with the Act. [28] The purposes and scope of the Act are stated in s 26. Subsection (1) is directed to the purposes of the Act, being to promote safety (subs (1)(a)), the rehabilitation of persons who suffer personal injury by accident (subs (1)(b), and to make provision for the compensation of persons who suffer personal injury by accident (subs (1)(c)). [29] Section 36(1) obliges the Corporation to place great stress upon rehabilitation and take all practicable steps to promote a well co-ordinated and vigorous programme for the medical and vocational rehabilitation of persons who have cover and who have become incapacitated as a result of personal injury by accident [30] Under subs (2), the rehabilitation programme in relation to those persons shall have as its objectives [a] Their restoration as speedily as possible to the fullest physical, mental, and social fitness of which they are capable, having regard to their incapacity. [31] Section 37 obliges the Corporation to take certain steps in relation to promotion of rehabilitation. Under subs (1)(a) and (b), the Corporation must establish close and harmonious relationships with Hospital Boards and other bodies and professions concerned with rehabilitation of injured persons, and co-operate with and use the services provided by them to the maximum extent possible. [32] Paragraphs (3)(a) (g) provide specific functions in relation to vocational rehabilitation, home modifications, aids and appliances, motor vehicle adaptations; paragraph (h) obliges the Corporation to provide for the dissemination of information for the purposes of advice and education in connection with rehabilitation. [33] Under subs (4)(a), the Corporation must evaluate the availability and effectiveness of rehabilitation services to persons who have become incapacitated by injury; paragraph (b) obliges the Corporation to inquire into and make recommendations concerning, instances where the treatment for the purposes of the rehabilitation of any such person appears to have been less than fully effective. The 2001 Act [34] Section 374: Compensation for pecuniary loss not related to earnings under 1972 and 1982 Acts: attendant care and household help, which is in the Rehabilitation part of the transitional provisions of the 2001 Act, preserves the right to claim entitlements under ss 121 and 80 in relation to payments of $ or more per week.

7 7 [35] Section 376: Compensation for pecuniary loss not related to earnings under 1972 and 1982 Acts: Subs (1) continues the application of s 439 of the 1998 Act, which continues the potential liability of the Corporation to make payments under ss 121 and 80 because of s 149(1) or (2) of the 1992 Act. [36] There is no reference to ss 36 and 37; the rehabilitation provisions in the 1972 and 1982 Acts are replaced by s 79 of the 2001 Act, which itself is based on Clause 38 of Schedule 1 of the 1998 Act and adopts the 1992 Act rehabilitation objectives. Case for the appellants: Gratuitous attendant care under 1972 and 1982 Acts [37] Mr Miller advanced two basic arguments, the first focusing on the rehabilitation provisions of the 1982 Act, as, he submitted, cover under the 1982 Act with its entitlements, carries through into the subsequent Acts: ss 135 & 149 of the 1992 Act; s 421 of the 1998 Act; and, s 355 of the 2001 Act. [38] The rehabilitation provisions of the 1982 Act (ss 36, 37) were seen as a vehicle for compensation of gratuitous care by Mackenzie J in Matthews v ACC 4, who in relation to an application under s 80(2)(b), said at paragraph [36]: It is not, however, concerned with the remuneration of persons providing rehabilitative care to the injured persons. The provision of extended care to an injured person would more naturally fall to be considered as a matter of rehabilitation than as a matter of compensation for loss resulting from an injury. That is, in my view, an important distinction in considering whether the principle applied in Mollgaard, and the cases there relied on, should influence the interpretation of s 80(2)(b). There is a difference in principle between compensating a person providing help to an injured person for an expense which would leave that person worse off financially on the one hand and the payment of an amount which will provide remuneration for the provision of help. The former appropriately falls within the category of compensation; the latter falls within the category of an expense of rehabilitation. Whether such remuneration, might by appropriate arrangements being made between the provider of assistance and ACC, be paid under the rehabilitation provisions of the Act is not an issue before me. [39] Mr Miller s argument is that the decision leaves the possibility open and nothing in the subsequent Acts prevents ACC from now making payments for gratuitous rehabilitation assistance they failed to pay for at the relevant times under the 1972 and 1982 Acts. Sections 17 and 18 of the Interpretation Act 1999 retain the entitlement to rehabilitation assistance despite the repeal of the 1982 Act unless there are clear transitional provisions which override this, which there are not; the restrictions in the later Acts apply to applications for payments calculated and paid under those Acts, not the more extensive rehabilitation ACC is obliged to provide under the 1982 Act. [40] Mr Miller argued that ss 36 and 37 were the logical rehabilitation provisions contemplated by Mackenzie J in Matthews and that the Court of Appeal in Estate of Simpson and Matthews also left open the possibility that s 80(1) could provide the statutory power to make the payment to the injured person for less than 24 hour attendant care as an expense of rehabilitation. Mr Miller submitted ss 374 and Matthews v ACC, HC Wellington, 31/3/06 CIV , [36]

8 8 of the 2001 Act dealt with less than 24hour care and as the 1982 Act was the more liberal, it was inconceivable that Parliament intended an all or nothing situation so that there was no such power under the 1982 Act. [41] Mr Miller said that the social context was important, as all the care was given by women who were generally not in employment, thus not able to claim under s 80(2)(b) or have their time objectively quantified by relation to set hours of work, and, if the care was less than 24hour there was no entitlement for the appellants under s 80(3), thus s 80(1) in combination with ss 36 and 37 provided the mechanisms for payment - the wording of s 80(1) requires the Corporation to have regard to any other rehabilitation assistance, and it was common ground that the appellants had not been compensated under s 80(3). [42] Regarding s 80(1), Mr Miller drew an analogy with common law damages awards, which he said always included a gratuitous care component, and quoted a passage from Watson v Port of London Authority 5, in which Megaw J rejected the notion that the costs of gratuitous services could not be awarded as their was no contract for payment between the injured husband and his wife, who was providing the care, as it was a blot on the law. This view was echoed by Lord Denning MR in Cunningham v Harrison 6, who felt it was only right and just that a grievously injured husband could recover for services rendered to him by his wife, instead of a nurse, without the need to draw up a legal agreement between them. [43] Mr Miller suggested that s 80(1) should be construed as meaning that if a contract for payment for services was drawn up between the appellants and their caregivers for attendant care would qualify, then the absence of such a contract should not matter, as to require it would be even more of a blot on the law under the no fault ACC legislation, which falls to be interpreted in a generous and unniggardly manner, and which is consistent with the Court of Appeal s exclusion of s 80(1) from their decision. 7 [44] Mr Miller said that the applications now pursued under s 80(1) were not precluded by the decisions in Simpson and Estate of Simpson and Matthews. Those cases mean that only those who require constant personal attention could come under s 80(3), and only those who could show an expense or loss in giving aid to the injured person came under s 80(2). This left s 80(1) for payment of actual and reasonable expenses to the injured claimant that necessarily and directly result from their injury, and the services claimed for were the same as those referred to by the Court, where a family member provided care and assistance which might otherwise have to be contracted for para [27]. [45] Mr Miller submitted that just because a more restricted view is taken of expenses able to be claimed by others under s 80(2) does not mean that a similar view should be taken of the injured person s own claim for their own expenses resulting from the accident. Section 80(1) had to be applied differently, as it is the only subsection to specifically include other rehabilitation assistance, therefore it must go hand in hand with other rehabilitation options. Broadbelt, 8 which only dealt with rehabilitation expenses under s 80(1), is a case on point and has positive 5 Wattson v Port of London Authority [1969] 1 Lloyds Rep 95 6 Cunningham v Harrison [1973] QB Matthews and Estate of Simpson v ACC (supra) 8 ACC v Broadbelt [1990] 3 NZLR; [1990] NZAR 385 (CA)

9 9 implications for this appeal, even though payment in that case was limited to proven expenses in relation to interest. 9 [46] Mr Miller referred me to Mollgaard v ACC, 10 a decision of the High Court under the 1992 Act, where the issue was the meaning of the phrase expenses actually incurred in Regulation 17(b) of the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994 (SR 1994/116) and the application of that term to the facts of that case. Mr Mollgaard s mother was his Welfare Guardian. She had made a claim on his behalf for evaluation under the Regulations, which was being processed and Regulation 17(b) was designed to address the interregnum between the date of lodgement of the claim, and the finalisation of the accepted programme, by providing for backdated care payments to cover the processing period. [47] Mr Miller was counsel for the successful appellant in that case and his principal submission, recorded at paras [13] and [14], was that the phrase does not require money to actually be paid when the attendant care is provided to the injured person. It is sufficient if the injured person renders himself liable to pay at a future time. He also submitted that the appellant became definitely committed to pay for his mother s care, the care was actually provided, and the absence of any written agreement was not fatal and nor was it appropriate in a family setting. The obligation to make payments (the expenses) accrued (were actually incurred) when the attendant care was provided. [48] The High Court held, applying the accepted and proper approach to the interpretation of remedial legislation envisaged by the Acts Interpretation Act 1924, that in the context of the case, where what was done by Mr Mollgaard s mother for his care was entirely consistent with the objects of the principal Act, a narrow conception of expenses or costs would be quite inappropriate. Wattson and Cunningham supported the lack of requirement for a formal contract and recognised in human terms, the opportunity cost to the provider (paras [29] - [36]). This was the approach Mr Miller urged the Authority to adopt here. [49] Mollgaard was distinguished by Mackenzie J in Matthews because the issue there was not whether Mrs Kelleher had incurred an expense in respect of the care of an injured person, as was the claim by Mrs Matthews under s 80(2)(b), but whether the injured person had incurred an expense in respect of the care provided to him by his mother, as that was quite a different question. This, Mr Miller submitted, along with the acceptance in Mollgaard of the common law damages approach to compensation for services and the interpretation of similar words used in s 80(1), justified treating subs (1) differently as it did not have the requirement under subs (2) that actual expenditure must have been incurred and the claim was made by the injured person. Case for the Corporation: Gratuitous attendant care under 1972 and 1982 Acts [50] McBride s submissions in support of the Protest to Jurisdiction were framed to cover only ss 36 and 37; his main argument was that as the appellants had abandoned the s 80(1) claim, they lost the jurisdiction under the 1982 Act afforded by 9 I note that Mr Broadbelt had claimed for loss of value of money through using his own resources, but this was disallowed under s 80(1)(d). 10 Mollgaard v ACC (AP/98), per Hammond J

10 10 ss 374 and 391 of the 2001 Act, which preserved the possible entitlement under s 80 and the jurisdiction of the Authority to which the corporation had initially consented. The entitlement to rehabilitation had to be within the Corporation s statutory powers under the 2001 Act, and there was nothing in the Act to preserve the operation of the repealed 1982 Act rehabilitation provisions. [51] Mr McBride argued, citing Broadbelt, Robinson, and Edwards 11 respectively, that the Corporation was a creature of statute and the first and crucial question is whether the Corporation has the authority to pay such a claim. Secondly, the Corporation has only those which it is given by statute, whether expressly or by necessary implication ; and thirdly, an express power may by implication exclude the existence of any implied powers under earlier statutory provisions Mr McBride said that necessary implication was a high threshold and possible implication or contended fairness of result does not come close to reaching that standard. [52] Mr McBride said that the ss 36 and 37 rights to rehabilitation under the 1972 and 1982 Act were specifically repealed by s 136 of the 1992 Act and replaced with a corresponding entitlement of different scope, which was consistent with the change described by the Court of Appeal in Childs v Hillock 12 as a move from a more generous compensation scheme to one less generous. The entitlement to rehabilitation was specifically not preserved under the 1992 Act, which was to be contrasted with the provisions of s 149 of the 1992 Act, addressing and in limited cases saving, s 121 and s 80. Therefore, Mr McBride argued, it was a s 4 of the Interpretation Act issue, not ss 17 and 18 saving accrued rights, as shown by the numerous cases on non-saving of lump sums. [53] Regarding s 391 of the 2001 Act, Mr McBride made the point that the section creates the Authority s jurisdiction and subs (4) conferred jurisdiction on the District Court for matters other than specifically provided for in subs (1) - (3). While the case at review was advanced under s 80, and hence potentially could have been within the Authority s jurisdiction; if this was disavowed, the ss 36 and 37 argument had no statutory basis. [54] In his substantive submissions, Mr McBride argued that there was no power under ss 36 and 37 to make payments in respect of gratuitous care, whether by way of, or in lieu of rehabilitation and there was nothing in the text of the two sections, which he analysed according to subject matter, that could provide a jurisdictional basis for what the appellants sought. He also argued that there was no power under the general rehabilitative provisions to provide money instead of support, or money that was not required for support at the relevant time. [55] Mr McBride argued that the fact that s 80 provided express powers to make certain payments, and that those were tightly constrained, discretionary and did not overlap by virtue of paragraph (1)(h), was a strong indication of the absence of the powers the appellants contended for and what they sought, which amounted to compensation under rehabilitation provisions, was contrary to the contrast between the two sets of provisions noted by the Court of Appeal in Broadbelt. 11 Broadbelt v ACC (supra) p 9; Robinson v ACC [2007] NZAR 193 (CA) [43] and Wellington City Council v Edwards [1997] 2 NZLR 129 (CA); 12 Child s v Hillock [1994] 2 NZLR Section 4(a): the enactment provides otherwise; or (b): the context of the enactment requires a different interpretation.

11 11 [56] In his s 80 argument, Mr McBride suggested that the wording of s 80(1) was materially the same as in ss 121(2)(b) and 80(2)(b), and the claims should be declined following the s 80(2) analysis in Simpson and Matthews at paragraphs [15] - [20], where it was held first, the headings to both sections clearly envisages that any claim must relate to economic loss, and subs (1) is concerned with restricting the types of losses that an injured person can claim; subs (2) concerns the situation where either others in the injured person s household have lost their services or provide assistance to the injured person; and subs (3) the provision of necessary care to a person who requires constant personal attention. [57] Secondly, the words expenses or losses in normal parlance would require proof of a pecuniary loss, in the sense of personal monetary detriment. Mr McBride made no distinction between the analysis of loss of opportunity through providing the service by the person claiming under subs (2), as opposed to the injured person claiming under subs (1) for paying another to provide the service as argued by Mr Miller, and he treated both subsections as being identically caught by the criteria accepted by the Court of Appeal as applying to subs (2); actual financial outlay was required and the use of the word incurred required proof of lost opportunity. [58] The third finding, that the words actual and identifiable required that the loss or expense be clearly definable and evidence of time spent caring for the injured person without evidence of how this caused a financial detriment, was Mr McBride submitted, consistent with the conclusion reached by the Court of Appeal in Broadbelt, in relation to the analysis of s 80(1). [59] Mr McBride stressed the need to confine Mollgaard to its own facts and based his argument on the alternative decisions on the position taken by Mr Corkhill for the Corporation, principally the importance of Mrs Kelleher s statutory duty and her expectation of payment, which he submitted was the distinguishing feature in that case. Mr McBride went further than Mr Corkhill s concession in Mollgaard that no express contract was required, and submitted that there had to be actual expenditure incurred in relation to attendant care, in order to found the appellants claim. [60] Mr McBride also criticised the first decision in Mollgaard which was in part based on Mr Miller s common law case argument and submitted that under s 27, the 1982 Act was a code and so proceedings for claiming common law damages directly or indirectly arising from the injury by the injured person, were statute barred. In that context and given the more stringent statutory tests, he said that the common law cases referred to by Mr Miller in Mollgaard and again in this appeal, were inapplicable. [61] Mr McBride s secondary argument was that the expenses and losses must not be of a kind excluded under the specific exclusionary paragraphs and what is sought here renders the two claims mutually exclusive under para (g). Secondly, under para (h) it is similar in nature to what is potentially payable under other provisions of the Act, namely s 80(2)(b) and (3), which he noted was also contended by the appellants in Mr Miller s submission that there were four possible avenues under the 1982 Act for claiming for attendant care. Further, the statutory thresholds under the adjacent subsections confirmed that such rules were also applied under subs (1). [62] At my request, Mr McBride filed supplementary submissions concerning the statutory basis for home help under the 1982 Act, given that, as with attendant care, there is no specific authorisation for payment for home help in the rehabilitation

12 12 provisions or s 80. Mr McBride said that along with childcare, case law demonstrated that home help was dealt with in appropriate cases under s 80, but he did not relate this to the similar lack of authorisation he relied upon in reference to attendant care. [63] Mr McBride attached an extract from Accident Compensation in New Zealand, A P Blair, (Second Edition, Butterworths 1983), which concerns the judicial interpretation of s 80(1), and is the source for his submission that the subsection is selective and restrictive, and the test is stern and more stringent than applied at common law, and that actual and reasonable expenses must be shown, and proven losses which necessarily and directly result from the injury (para [3.12]). Case for the appellants: Power to now make payments under the 1972 and 1982 Acts [64] Mr Miller submitted that there is no barrier to the Corporation now making payments to the appellants of backdated attendant care they failed to pay under the 1982 Act, as this is provided for in the transitional provisions of the 2001 Act, and demonstrated in the s 80(3) payments made following the major decisions under that subsection. [65] Mr Miller produced the Corporation s own 2004 analysis of the backdated attendant care payments made to implement the decision in Campbell and Handley allowing backdated payments for gratuitous attendant care provided by family members, which I have discussed in detail below, and a 2008 analysis by Price Waterhouse Cooper released by the then Minister for ACC in 2009, of expenditure on backdated care for the nine months to December 2008 and the expected savings of $4,000,000 in future liability. [66] The 2004 ACC Policy Document and the PWC analysis combined, Mr Miller submitted, to not only justify the Authority allowing the appeal and making directions that the Corporation quantify and pay for the lack of rehabilitation assistance for the appellants under the 1982 Act, it provided the means to do so. [67] In his supplementary submissions Mr Miller also referred me to Taylor v Taite 14 (a case on the division of attendant care payments) as an example of attendant care being continued under s 80 when the appellant was not receiving payment at that rate, but he continued to be entitled to compensation under s 80 because he should have been. This High Court decision, he submitted, along with Campbell and Handley was to be preferred over the Corkhill Decision No 2/2005, which was advanced by Mr McBride as a case where it was decided that actual receipt of $350 per week or more immediately before 1 July 1992 was needed for continuing a claim under s 80. Case for the Corporation: Power to now make payments under the 1972 and 1982 Acts [68] Mr McBride s primary submission was that nothing in the 1982 Act provided any power for the Corporation to make any payments under the rehabilitation provisions in lieu of rehabilitation. Nor, he said, is there any power under the 2001 Act to make such payments and this underpinned his jurisdiction argument, which was essentially 14 Taylor v Taite 23/5/02, HC, Rotorua M13/11, Chambers J

13 13 that as any backdated payments would fall to be made while the 2001 Act was in force, the payment had to be possible under that Act. [69] Mr McBride agreed that the payments made by the Corporation to qualifying claimants following successful s 80(3) cases decided after the 1982 Act was repealed were made lawfully by the Corporation, and that Campbell and Handley was not an unmeritorious appeal, in the sense that no entitlements under the 1982 Act could be paid to the appellants if they succeeded. He nonetheless maintained that no payments could be made if the present appeal succeeded, as there was no express power to make the payment under the 2001 Act. Some statutory basis had to be shown by the appellants, and contentions of policy or opinion had no bearing on the issue. [70] I note, however, that in Mr McBride s main submissions and again in his supplementary submissions, he argued when distinguishing a claim made only under ss 36 and 37 from a claim made under s 80(1), that if there was an entitlement for a discrete past period under the 1982 Act, ss 374 and 376 of the 2001 Act might enable the Corporation to now make a payment under s 80 or s 121, as provided in section 149(1) & (2) of the 1992 Act, via s 439 of the 1988 Act, as argued by Mr Miller. [71] I agree with Mr McBride that the appellants would be hard pressed to found a claim for backdated payment of attendant care if the claim had continued under ss 36 and 37 only, but his arguments on the point amount to a concession, albeit somewhat hesitant, that payments under ss 121(1) and 80(1), are possible under the transitional provisions of the 2001 Act. Discussion Can a claim be made for gratuitous care under the 1972 and 1982 Acts? [72] It should be common ground that a claim for gratuitous attendant care can be made. Historical claims have been accepted under ss 121 and 80 (whether by the operation of case law or by the Corporation) under subs (3) when made by the injured person for attendant care provided by family members that was not paid at the time it was performed and where no expectation of payment existed. [73] The Corporation has chosen to argue its opposition to the appeal by raising objections that are contrary to the legal position it accepted as applied in the primary decision letter and confirmed in the review decision letter, and which are also contrary to the historical decisions it has made on the appellants claims for less than 24 hour attendant care, and to its acceptance of the jurisdiction of the Reviewer and the Authority in respect of reviews and appeals respectively. [74] Mr McBride also argued for the application of the exclusions in paras (g) and (h), when there is no evidence that the Corporation took this view, or made a decision that the paragraphs applied to disentitle the appellants; in any event, as this paragraph was first enacted under s 80(1), para (h) could only apply to appellants with claims accepted under the 1982 Act. [75] Nor do I consider that the issue capable of serious argument in the present context, as what the appellants are seeking is not the same as other compensation available under the Acts, and nor is it sufficiently similar to the need for 24 hour

14 14 constant personal attention for which payment is provided in subs (3) to justify concluding that if the appellants with cover accepted under the 1982 Act fail under that head, they must also fail under subs (1) for less than 24 hour attendant care. [76] In my view, the only question properly at issue in this appeal is as set out in the primary decision letter, namely, that as ACC is able to consider compensation under s 80 of the 1982 Act as provided by s 376 of the 2001 Act, is ACC s position that to have an entitlement to compensation under s 80(1) of the 1982 Act, that (appellant) must have incurred an actual and reasonable expense or proved loss. a correct statement of the test under s 121(1) of the 1972 Act and s and 80(1) of the 1982 Act? Qualifying criteria under ss 121(1) and 80(1) [77] The questions that arise, given that payment for attendant care is clearly an expense, not a loss, are as follows: [a] [b] [c] Can a payment of compensation be made for an item of expense that is classified as rehabilitation assistance? Must there be an expense that as in subs (2)(b) was actually incurred, or is it sufficient that the service to which the expense relates can be shown to have been actually performed, provided it was reasonable and meets the rehabilitation objective of the Act, as the appellants contend? and, Were the Corporation and/or the appellants caregivers under any form of legal duty that may be relevant? [78] The words used in subs (1) differ in a material way from the relevant words used in the other subsections. First, there is the requirement for the Corporation to have regard to any rehabilitation assistance and any other compensation payable; then the type of compensation that may be paid is described as being for actual and reasonable expenses directly resulting from the injury; then the exclusions operate to disentitle the claimant if the same compensation is otherwise payable under the Act, or in respect of the 1982 Act only, if the Corporation considers it similar in nature to any expense for which compensation is payable under any other provision of the Act. [79] The two cases that I consider most applicable to understanding subs (1) are Broadbelt and Mollgaard, and I shall deal with them in that order. [80] I agree with Mr McBride that s 80 is not a rehabilitation provision and there is a distinction between the rehabilitation provisions and the compensation provisions. The Court of Appeal in Broadbelt did not, however, find that the rehabilitation provisions and the compensation provisions were mutually exclusive, as Mr McBride has suggested. Rather Richardson J said at page 3, when discussing the interaction of s 80(1) and payment for an expense claim for items that came within the ambit of rehabilitation assistance under s 37(3)(e) and (f), and which the Corporation had declined to pay for as Mr Broadbelt did not satisfy the residence requirements under s 37(3) of the rehabilitation provisions: We are satisfied that Tompkins J was correct in concluding that the Corporation was entitled to meet claims for reimbursement of expenditure under the compensation provisions of s 80(1) and that it was not inhibited in doing so by the rehabilitation provisions.

15 15 [81] Richardson J then considered the purpose of the Act under s 26, being to promote safety (subs (1)(a)), to promote the rehabilitation of persons who suffer personal injury by accident (subs (1)(b)), and to make provision for the compensation of persons who suffer injury by accident and of certain dependants (subs (1)(c)). He said that rehabilitation is a primary function of the Corporation and at page 4 said: Section 36(1) obliges the Corporation to place great stress on rehabilitation and to take all practical steps to promote a well co-ordinated and vigorous programme for the medical and vocational rehabilitation of persons who have cover and who have become incapacitated as a result of personal injury by accident and are for the time being in New Zealand. The subsection thus requires the Corporation as a matter of statutory obligation to discharge that rehabilitative function in the case of incapacitated persons with cover who are for the time being in New Zealand. [82] The statutory test in Broadbelt appears at first reading to exclude payment of compensation for expenses that qualify as rehabilitation assistance, but his later comment makes it clear that they are included. For example, when Richardson J defined compensation at page 6, he said: Compensation does not have a technical meaning. It means any compensation or benefit paid or provided by the Corporation under ss 59 to 82 of the Act. Section 80 is a reimbursing section provision and it is both necessary and sufficient that (i) the expenses and losses reimbursed necessarily and directly result from the injury; (ii) that in the case of such expenses they are actual and reasonable and the losses are proved ; and (iii) that they are not of a kind excluded under the specific exclusionary provisions. In short, the two sets of provisions are distinct and different in character. [83] However, at page 7 Richardson J said, after stating that on a plain reading of s 80(1) and having regard to the concessions properly made by the Corporation concerning the application of the s 37(3) residence qualification for rehabilitation assistance to deny the claim under s 80(1), which has no such qualification: these expenses satisfy all three elements of the test. And there is no justification elsewhere in the statutory scheme for reading in any additional qualification. The purposes are different. The subjects are dealt with separately. The definition of compensation excludes the rehabilitation assistance payable under ss 36 and 37. Throughout the general provisions of the Act rehabilitation assistance and compensation are recognised as distinct and as the proper subject of separate treatment. Section 80 itself preserves that distinction in providing for the Corporation in exercising the discretion under the subsection to have regard to other compensation payable and any rehabilitation assistance provided. In understandably expressing the distinction in those terms, so as to take account of any element of duplication as it affects the recipient in a particular case, it does not exclude the application of the subsection to what in a different part of the Act and for different purposes is characterised as rehabilitation assistance. [84] The importance of these passages for the present consideration, is that it is apparent that first, the Corporation is obliged under ss 36 and 37 to provide

16 16 necessary services to the injured person which will reasonably assist in their rehabilitation, and secondly, while there is a distinction between rehabilitation provisions and compensation provisions, this is in terms of not incorporating limitations under the rehabilitation provisions which are for one purpose, into compensation provisions which are for another purpose. They also suggest that the process with respect to expenses that also qualify as rehabilitation assistance under the rehabilitation provisions, is an either/or one: either the Corporation pays for the rehabilitation assistance at issue under s 37 when it is first provided, or if it does not because no application is made at the time of provision and the injured person pays for the rehabilitation assistance, then provided it is within the ambit of necessary rehabilitation assistance, this is able to be reimbursed by way of compensation for an expense under s 80(1), and the subs (1) criteria apply, not the rehabilitation assistance provisions. [85] Regarding the Corporation s necessary statutory authority to pay a claim for rehabilitation assistance under the compensation provisions of 80(1) as argued by Mr McBride, I do not consider that this is capable of serious argument in the present appeal, as the Corporation clearly can, and if the claim meets the statutory formula, must do so. [86] The question arose in Broadbelt not in relation to payment for rehabilitation assistance for which payment is now claimed by the appellants, but in relation to the claim for interest Mr Broadbelt made as compensation for meeting the expenses of the costs of the wheelchair and alterations which should have been reimbursed by the Corporation. The claim involved alternative claims for interest on the borrowed funds, and a market place formula: payment for the use of money, allowance for the risk of non return and an inflation component. Whether he borrowed to meet the costs, or employed his own funds, he suffered financially through the delay and claimed that compensation should be measured on the interest he was obliged to pay, or alternatively, the income that he could otherwise have reasonably derived from a profitable investment of those funds. [87] These were the two situations discussed by Richardson J at page 9, from which Mr McBride quoted in part. The full passage reads: However, the first and crucial question is whether the Corporation has authority to play such a claim. As a statutory body it requires statutory authority to do so. Section 80(1) is clearly wide enough to extend to interest expenses incurred as a result of delay in payment on the part of the Corporation. If the costs of the wheelchair and alterations are within the statutory formulation then the associated expenses stemming from the delay in payment and reflecting the time value of money may properly be regarded as actual and reasonable expenses necessarily and directly resulting from the injury. They are no different in character from such expenses forming part of the total outlay had the respondent paid for the wheelchair and alterations by time payment over the period. But we are not persuaded that the section covers the alternative situation where a claimant has drawn on his own resources to pay the costs. In that case, the claimant has not incurred expenses. Even if the inability to employ his or her own funds profitably could be regarded as proved losses necessarily and directly resulting from the injury, which we doubt the claim in that regard would fall directly in the exclusion under para (d) of the loss of opportunity to make a profit.