Accident Compensation Corporation v Algie - [2014] NZHC 409

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-852 [2014] NZHC 409

BETWEEN ACCIDENT COMPENSATION CORPORATION
Appellant

ANDJAMES ALGIE & ORS Respondents

Hearing: 14 October 2013

Counsel: I R Millard QC and P A McBridge for Appellant
J M Miller and S R Lovegrove for Respondents

Judgment: 7 March 2014

RESERVED JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
3.15 pm on the 7th day of March 2014.

Solicitors: McBride Davenport James, Wellington, for appellant.
John Miller Law, Wellington, for respondent.

ACCIDENT COMPENSATION CORPORATION v ALGIE [2014] NZHC 409 [7 March 2014]

Background

[1] This is an appeal against a decision of the Accident Compensation Appeal Authority (the Authority) delivered on 30 January 2013. Leave to appeal to this Court was granted by the Authority on 1 May 2013.

[2] The proceedings involve 20 claimants who have cover under the Accident Compensation Act 1972 (the 1972 Act) and the Accident Compensation Act 1982 (the 1982 Act) respectively. Each of the claimants has suffered personal injury by accident. Their injuries have involved brain injuries or paralysis to an extent limiting their ability to care for themselves. Each of them has received attendant care and assistance from a family member. That assistance has been unpaid.1 All of the claimants have applied for compensation by way of backdated payments for unpaid attendant care performed by the family members.

[3] The issue on this appeal is whether the relevant statutory provisions empower the appellant, the Accident Compensation Corporation (ACC), to provide some recompense to the injured person in recognition of the provision of that care. The case is concerned only with that broad legal question. The question whether, if there is such a power, such a payment would be justified in the circumstances of any individual case is not in issue.

[4] The provisions which the claimants say empower ACC to make payment to recognise the provision of care by family members are s 121 of the 1972 Act and s 80 of the 1982 Act.2 Those sections, which are expressed in broadly similar terms, provide for:

(a) under subs (1), payment to the person suffering personal injury by accident of compensation of such amount (if any) as ACC thinks fit for actual and reasonable expenses and proved losses necessarily and
directly resulting from the injury;

1 The question of law in the appeal refers to “gratuitous” attendant care. I prefer the term “unpaid”, as the word “gratuitous” may imply a lack of any legal or moral obligation to provide care. The present case concerns situations in which care has been provided under a sense of responsibility arising from family ties or natural love and affection.
2 The two sections are attached as an appendix.

(b)under subs (2), payment to a member of the injured person’s household such compensation as ACC thinks fit for any identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person.

[5] The possible application of…

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: [2014] NZHC 409
Decision Date: 7 March 2014

CaseChat Overview and Summary

The Accident Compensation Corporation (ACC) brought an appeal against a decision of the Accident Compensation Appeal Authority (Authority), which found that a claim for payment for unpaid attendant care is permitted under sections 121(1) and 80(1) of the Accident Compensation Act 1972 and the Accident Compensation Act 1982, respectively. The Authority held that ACC was not precluded from making some payment if the circumstances merit compensation, and the claimants' cases were remitted back to ACC for investigation and decision. The appeal concerns the statutory interpretation of these sections and whether the provision of unpaid attendant care by family members falls within the scope of "proved losses necessarily and directly resulting from the injury." The court held that the Authority was correct to determine that a claim for payment for unpaid attendant care is permitted under sections 121(1) and 80(1) of the respective Acts. The necessary focus is on the words "proved losses," as the injured person has not incurred any "actual and reasonable expenses" in respect of the attendant care. The loss of bodily function, which gives rise to a need for attendant care, is a loss to the injured person, and limiting the term "losses" to pecuniary losses involves giving a meaning to the word that is narrower than its ordinary meaning. The court's decision does not entitle any of the claimants to a payment under sections 121(1) and 80(1), but it simply holds that ACC is not precluded from making some payment if the circumstances merit compensation.

Orders