Accident Compensation Corporation v Algie - [2016] NZCA 120

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA528/2014
[2016] NZCA 120

BETWEEN

ACCIDENT COMPENSATION CORPORATION
Appellant

AND

JAMES ALGIE
First Respondent

JABBAR ALI
Second Respondent

WILLIAM BARLOW
Third Respondent

RICHARD DONOVAN
Fourth Respondent

GARY EGGINTON
Fifth Respondent

JEFFERY GALL
Sixth Respondent

MARK GARDINER
Seventh Respondent

BRYDON GRIMMETT
Eighth Respondent

ESTATE OF CORRIN HARDING
Ninth Respondent

MICHAEL HARWOOD
Tenth Respondent

ANTHONY JONES
Eleventh Respondent

JOHN MACKEY
Twelfth Respondent

JOHN MOANANUI
Thirteenth Respondent

SHANNON ALBERT MOASE
Fourteenth Respondent

SARAH ELIZABETH O’DWYER
Fifteenth Respondent

LUKE PALMER
Sixteenth Respondent

OPAEPIKIARERO PEPENE
Seventeenth Respondent

NOTI ROBINSON
Eighteenth Respondent

GEOFFREY SHARP
Nineteenth Respondent

PHILIP WHAREKAWA
Twentieth Respondent

Hearing:	2 February 2016
Court:	Stevens, French and Winkelmann JJ
Counsel:	H B Rennie QC, A S Butler and C J Curran for Appellant J M Miller and K M Eckersley for Respondents
Judgment:	13 April 2016 at 11 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe question on appeal is answered as follows:
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982?

Yes.
CThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Can an individual who has suffered a personal injury by accident claim for compensation, under either the 1972 or the 1982 Accident Compensation Acts, for care provided by family on an unpaid basis? That is the issue in this appeal.
This is an appeal from a decision of MacKenzie J in the High Court in which he held the claimants could claim for such compensation.[1] Justice MacKenzie granted leave to appeal to this Court by way of case stated.[2] The question stated by the High Court for determination by this Court is as follows:
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982?

Background

The claimants

[1]Accident Compensation Corporation v Algie [2014] NZHC 409.

[2]Accident Compensation Corporation v Algie [2014] NZHC 1582. Leave to appeal was granted under s 112 of the Accident Compensation Act 1982.

Each of the 20 respondent claimants had cover under the 1972 and 1982 Acts. Each had suffered a personal injury by accident, resulting in injuries of such severity that the claimants had limited ability to care for themselves. Although the Accident Compensation Corporation (ACC) paid out various entitlements in respect of their injuries, it did not carry out assessments as to the care the claimants would need in the community. Nor did it inform them or their caregivers of the rehabilitative assistance by way of attendant care that was available under the two Acts. Rather, the care and assistance required by the claimants as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZCA 120
Decision Date: 13 April 2016 at 11 am

CaseChat Overview and Summary

The appeal in Accident Compensation Corporation v Algie was heard by Stevens, French and Winkelmann JJ. The court was required to decide whether the High Court was correct in its decision that a claim for payment for unpaid attendant care was permitted under sections 121(1) of the Accident Compensation Act 1972 and 80(1) of the Accident Compensation Act 1982. The court found that the High Court was in error and that the claimants were not entitled to claim for payment for unpaid attendant care under the mentioned sections.

The court began by examining the text of the particular section and the associated heading, noting that section 121 appears within Part 6 of the Act, entitled "Compensation," and has its own heading: "Compensation for pecuniary loss not related to earnings." The court found that the express exclusions from cover contained in s 121(1)(a)-(g) all described losses of a pecuniary nature, indicating that the expression "proved losses" should be read as limited to proved losses of a pecuniary nature. The court also noted the express provisions in s 121 for payment for attendant care, which suggested that Parliament would be unlikely to create an undefined, largely unconstrained discretion for ACC to pay for attendant care in s 121(1).

The court considered the statutory scheme and the prohibition in s 120(8), which prevents compensation other than that specified in the Act in respect of non-economic loss. The court found that the claimants' argument that the loss of bodily function could be characterized as an economic loss was not persuasive, as the Act plainly treated both pain and suffering and loss of bodily function as types of non-economic loss.

In conclusion, the Court of Appeal found the High Court was in error and that a claim for payment for unpaid attendant care is not permitted under sections 121(1) of the Accident Compensation Act 1972 and 80(1) of the Accident Compensation Act 1982. The appeal was allowed, and there was no order for costs as ACC did not seek costs.

Orders