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 subs (2) to a situation such as that in issue in this case was considered by the Court of Appeal in two cases heard together, Simpson v ACC and Matthews v ACC.3   The Court of Appeal held that, where the claim is made by the person providing attendant care under  subs (2), the person providing the attendant care must establish a pecuniary loss or expense actually incurred by that person  before ACC  can  exercise  its  discretion  to  make  payment  to  the  person providing attendant care.4

[6]      In  its  judgment,  the  Court  of Appeal  added,  in  what  it  described  as  a

“postscript”, these comments:5

[Counsel for the appellant] frankly accepted in his oral submissions that his contention was that the Act should be interpreted so that where a family member  provided care  or assistance (which  might  otherwise  have to  be contracted for) compensation should be available.

We make no comment on the underlying philosophy of his submission, but the clear wording of the sections of the respective Accident Compensation Acts relied on by the appellants do not permit such an approach.  Nor do we determine whether, under s 121(1) of the 1972 Act or s 80(1) of the 1982

Act, the injured person could maintain a claim for compensation in respect of such services.   It is not the manner in which these cases have been advanced at any stage and given the limits of the case stated inquiry we are not able to express any view on the point.

[7]      As that passage makes clear, the Court of Appeal expressly did not determine whether,  under  subs (1)  of  the  respective  provisions,  the  injured  person  could maintain a claim for compensation in respect of the attendant care provided to that person.6

[8]      Applications  by  the  appellants  under  ss 121(1)  and  80(1)  were  made following the delivery of that Court of Appeal decision.  ACC declined all of the

3      Simpson v ACC and Matthews v ACC [2007] NZCA 247, [2007] NZAR 497.

4 At [19].

5      At [27]-[28].

6 At [28].

applications, on the grounds that it was a requirement of a claim under subs (1) that the injured person must have incurred an actual and reasonable expense or proved loss, and the evidence of the care provided by the family members did not establish any actual expense or loss.  That decision was upheld on review, and was then the subject of the appeal to the Authority.7

[9]      The appeal was successful.  The Authority held that a claim for payment for what  the Authority  described  as  “gratuitous  attendant  care”  is  permitted  under s 121(1) of the 1972 Act and s 80(1) of the 1982 Act.  It further held that nothing in the later legislation prevents the Corporation now making such payment to those appellants who qualify by virtue of the attendant care they received.   The claims were remitted back to ACC for investigation and decision.

[10]     ACC appeals against that decision of the Authority.

Submissions

[11]     Mr Millard QC for ACC submits that the key words in subs (1) are “actual and reasonable expenses and proved losses necessarily and directly resulting from the injury”.  Both phrases, “actual and reasonable expenses” and “proved losses”, in their context in the Act, involve the concept of monetary expenses, and monetary detriment and loss.  Where care is given without charge there is no actual expense incurred   by,   or   personal   monetary  detriment   to,   the  injured   person.     The interpretation  is  reinforced  by  the  heading  of  the  section  “Compensation  for pecuniary loss not related to earnings”, and by the exclusions in subs (1), particularly those in (d) and (f). This restriction of the section to monetary expenses and losses is reinforced by the context, of both the section and the Act as a whole.

[12]     In submitting that the term “proved losses” refers to losses of a pecuniary nature, counsel for ACC refers to the decision of the Court of Appeal in Simpson v ACC and also to comments by the Court of Appeal in ACC v Broadbelt and by this

Court in XY v ACC.8

7      Algie v ACC [2013] NZACA 1.

8      Simpson v ACC, above n 3; ACC v Broadbelt [1990] 3 NZLR 169 (CA); XY v ACC (1984)

4 NZAR 219 (HC), at 223.

[13]     Alternatively, ACC refers to a difference in the wording between the sections in the 1972 Act and in the 1982 Act.  It submits that, even if compensation may be payable under the 1972 Act, the exclusion in s 80(1)(h) of the 1982 Act means that it is not payable under the latter Act, because the type of expense claimed here is similar to that in s 80(2)(b) and s 80(3).

[14]     Mr Miller for the respondents supports the reasoning of the Authority, and submits that the provision should receive a generous and unniggardly interpretation. He submits that the interpretation contended for by ACC would lead to anomalies and would not be consistent with the principles guiding the introduction of the “no fault” compensation scheme.  He draws support from several cases under other ACC legislation, and other cases in which a similar issue has been dealt with in the context of common law claims for personal injury damages.

Discussion

[15]     The meaning of the provision, in applying it to the relevant facts, must be ascertained from its text and in light of its purpose.  Even if the meaning of the text may appear plain in isolation from its purpose, that meaning should be checked against the purpose in order to observe the requirements of s 5 of the Interpretation Act 1999 that text and purpose are the key drivers of statutory interpretation.9

[16]   The overall purpose of the 1972 Act and the 1982 Act is to provide compensation, in the terms mandated by the Act, to the victims of accidents.  The long title to the 1972 Act records that it is an Act to make provision for (inter alia) “the rehabilitation and compensation of [persons having cover under the Act]”.  The focus must be on the specific purpose of subs (1) in the scheme of the Act having regard to that overall purpose of the two Acts.

[17]     Approaching the matter first by reference to the plain words of the section, I define the relevant question as being whether the provision of attendant care by a family  member  falls  within  the  words  “proved  losses  necessarily  and  directly

resulting from the injury”.   I consider that the necessary focus is on the words

9      Commerce Commission v Fonterra [2007] NZSC 36, [2007] 3 NZLR 767 at [22].

“proved losses”, as it is clear that the injured person has not incurred any “actual and reasonable expenses” in respect of the attendant care.

[18]     The Court of Appeal held in Simpson that the words “any identifiable actual and reasonable expenses or losses incurred” in s 121(2)(b) of the 1972 Act, and the words “any identifiable and reasonable expenses or losses incurred” in s 80(2)(b) of the 1982 Act, do require proof of actual monetary loss or expenses incurred by a person in giving help to another who has suffered personal injury by accident.10

[19]     The wording of the two subsections is similar, but subtly different.  The key words in subs (1) are “proved losses”, and in subs (2) are “losses incurred”.   It is necessary to examine the respective functions of subss (1) and (2) in the scheme and purpose of the Act, to ascertain whether that difference in wording is intended to achieve a different outcome on the point in issue.

[20]     Subsection (2) is concerned with losses incurred by a person other than the injured person.  The payments which the Corporation may make under subs (2) are payments to other persons who are financially affected by the injury to the injured person.  Under subs (2)(a), the payment which may be made is compensation for the loss of a service provided by the injured person.  The loss must be quantifiable.  A loss quantifiable in money is contemplated.  Subsection (2)(b) addresses the situation of a person who has given help to an injured person and, in so doing, has suffered a loss. Again, a pecuniary loss by the person who has given help is contemplated. The loss must have been incurred by the person providing care.  The voluntary provision of attendant care to an injured family member is not, on the ordinary meaning of the words, a “loss incurred” by the person providing care.  The Court of Appeal has so

held.11

[21]     The focus of subs (1) is different.   It is concerned with the injured person himself or herself. That different focus means that subs (1) fulfils a different purpose in the scheme of the Act, notwithstanding its position adjacent to subs (2).   Its purpose is to provide compensation to the injured person in respect of a particular consequence of their injury, supplementing the other provisions of the Act which

specify compensation payable in respect of an injury.  I therefore turn to consider the meaning of subs (1), having regard to the text and purpose of that subsection.

[22]     When the matter is viewed from the perspective of the injured person, the loss of bodily function (for example from brain injury or paralysis) which gives rise to a need for attendant care is, on the ordinary meaning of the word “loss”, a loss to the  injured  person.    To  limit  the  term  “losses”  in  subs (1)  to  pecuniary  losses involves giving a meaning to the word which is narrower than its ordinary meaning. The omission of the word “incurred” from subs (1) is a pointer to the conclusion that the term is not intended to be limited to pecuniary losses.  The different focus of the two subsections means that the interpretation of subs (1) is not necessarily greatly assisted by the interpretation of subs (2).

[23]     The  interpretation  advanced  by  counsel  for ACC  acknowledges  that  the provision of attendant care which is necessary to deal with the physical loss which the injured person has suffered is potentially the subject of payment which falls within the scope of subs (1).  But, counsel submits, the attendant care must be paid for by the injured person before subs (1) is triggered.  On ACC’s interpretation, the triggering of the section so as to permit a payment is dependent upon the injured person suffering not only the physical loss which leads to the need for the provision of attendant care, but also a financial loss by payment for that attendant care. That interpretation needs to be examined having regard to other relevant decisions under the legislation.

[24]     In its decision, the Authority dealt at some length with the decision of the Court of Appeal in ACC v Broadbelt and the decision of this Court in Mollgaard v ARCIC.12  The Authority said:13

It follows, when the appellants’ claims are properly considered in light of

Broadbelt and Mollgaard, that although there is no specific provision in the

1972  and  1982 Acts  for  payment  for  attendant  care  that  was  originally provided on a gratuitous basis, such a payment is permitted under ss 121(1)

and 80(1) on the application by the injured person, as such care is congruent

with  the  purposes  of  the  Act  and  the  objectives  of  the  rehabilitation provisions.

[25]     In Broadbelt, B had been rendered quadriplegic in a motor accident while he was visiting New Zealand.14    He had cover under the 1982 Act.   On his return to England he purchased a wheelchair and made alterations to his house to adapt it to his needs.   ACC accepted that these were “expenses … necessarily and directly resulting from the injury” within s 80(1).15   However, it took the view that the claim was to be considered under the rehabilitation assistance provisions in the Act, rather than the compensation provisions.  The former provisions applied only if B was in New Zealand.

[26]   The Court of Appeal held that ACC could meet the claim under the compensation  provisions  of  s 80(1)  and  was  not  inhibited  by  the  rehabilitation provisions.   Richardson J, delivering the judgment of the Court, observed that the

1982 Act draws a clear distinction between compensation and rehabilitation assistance, but went on to say:16

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.

[27]     Here, the attendant care provided to the claimants may be categorised as rehabilitative assistance.  Broadbelt makes clear that it is not excluded from s 80(1) for that reason.  It was not argued here that the attendant care may be paid for under another  provision  in  the  legislation  as  rehabilitative  assistance.    The  relevant principle which I discern from Broadbelt is that the provision of rehabilitative assistance to an injured person is potentially within the scope of “losses” to the injured person which may be compensated under subs (1).

[28]     The issue which arises here did not arise in Broadbelt.   There, the injured person had incurred a monetary expense, which the claimants in this case have not.

14     Broadbelt, above n 8.

15     At 170.

On that point, the decision of the full Court of the High Court in Mollgaard is relevant.17

[29]   That case involved later legislation, the Accident Rehabilitation and Compensation Insurance Act 1992, and regulations under that Act.  It is therefore not directly relevant to ss 121(1) and 80(1).  However, the facts are similar to this case and some statements of principle from that case are relevant.

[30]     In Mollgaard, M suffered from quadriplegia as a result of an accident covered by the Act.  His mother, a solo parent and sole income earner, cared for him.  She had difficulty coping and applied for assistance under the complex injuries regime in the relevant regulations.  The factual situation was essentially similar to that in this case, in that neither M nor his mother incurred actual expenses.  The issue before the Court was a question of law as to the meaning of the phrase “expenses actually

incurred”. The Court held that M’s claim succeeded.  It said:18

In this context a narrow conception of ``expenses'' or ``costs'' would be quite inappropriate. In an economic sense a ``cost'' was incurred in the form of the services performed by Mrs Kelleher for her son, and those services were

``actually'' incurred. There was a plain ``opportunity cost'' to Mrs Kelleher. Whilst she was doing what she did for David she could not be doing other things. It does not at all matter that those ``other things'' may not have been remunerated.

[31]     Mr Millard seeks to distinguish Mollgaard on the basis that it is concerned with a particular regime in later legislation.   That is so, but I do not think that detracts from the force of the general proposition that a narrow interpretation is inappropriate.   Indeed, on this point this case is stronger than Mollgaard.   In Mollgaard,  the  relevant  provision  required  that  there  be  “expenses  actually incurred”.  Sections 121(1) and 80(1) require “proved losses”.   If the provision of unpaid attendant care is an “expense actually incurred”, it is a fortiori a “proved loss”.

[32]     XY v ACC was concerned with the birth of a healthy child following a failed sterilisation  operation.19      This  Court  held  that  the  expenses  associated  with  the

17     Mollgaard, above n 12.

18 At [34].

19     XY v ACC, above n 8.

maintenance and upbringing of the child were not of a kind which could, in the ordinary understanding of the community, be described as “expenses” or “losses” under s 121(1).20   That case is so far removed from the facts of this case that I derive little assistance on the issue which confronts me from either the ratio of that case, or obiter comments made with that quite different factual background in mind.

[33]     The Court in Mollgaard relied, and Mr Miller in his submissions relies, on two English cases which address, in the context of the calculation of damages at common law for claims involving personal injury by accident, an issue similar to that involved in this case.21

[34]     In Wattson v Port of London Authority, the injured plaintiff had been nursed by his wife, who had lost wages as a result.22    The plaintiff was held entitled to recover the amount of the lost wages even though the loss was incurred by his wife and the plaintiff was under no legal obligation to his wife in respect of that loss. Megaw J said:23

… it would be inconsistent in a case of this sort—if the plaintiff had made a legally binding contract with his wife that if she would be good enough to give  up  work  and  wages  in  order  to  look  after  him  he,  if  and  when, recovering damages, would repay that sum.  That is not how human beings work and it would, in my judgment—and I say this because I think it ought to be said—be a blot on the law if the law were to be such that a wife who in these circumstances had held her husband to make a contract to repay her he should recover damages for that amount; but if she behaves like an ordinary decent human being and does not put construction upon the act of that service, there is financial disadvantage to the plaintiff as a result. …

[35]     In  Cunningham  v  Harrison,  the  Court  of Appeal  discussed  the  situation where care was provided by a wife who was not in paid employment.24     Lord Denning MR said:25

The plaintiff's advisers seem to have thought that a husband could not claim for the nursing services rendered by a wife unless the husband was legally bound to pay her for them. So, on their advice on 11 July 1972 an agreement was signed whereby the husband agreed to pay his wife £2,000 per annum in respect of her nursing services. We were told that such advice is often given by counsel in such cases as these when advising on evidence. I know the

20     At 224.

21     Mollgaard, above n 12.

22     Wattson v Port of London Authority [1969] 1 Lloyd's Rep 95 (QB).

23     At 102.

24     Cunningham v Harrison [1973] QB 942.

25     At 951.  Citations omitted.

reason why such advice is given. It is because it has been said in some cases that a plaintiff can only recover for services rendered to him when he was legally liable to pay for them: see for instance  Kirkham v Boughey and Janney v Gentry.26 But, I think that view is much too narrow. It seems to me that when a husband is grievously injured—and is entitled to damages—then it is only right and just that, if his wife renders service to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer: see Best v Samuel Fox & Co Ltd;27 but she has rendered services necessitated by the wrongdoing, and should be compensated for it. If she had given up paid work to look after him, he would clearly have been entitled to recover on her behalf, because the family income would have dropped by so much: see Wattson v Port of London Authority per Megaw J.28 Even though she had not been doing paid work but only domestic duties in the house, nevertheless all extra attendance on him certainly calls for compensation.

[36]     In applying the principles described in those cases, the Court in Mollgaard addressed whether M was under a legal obligation to his mother.29   The existence of some  legal  obligation  on  the part  of the injured  person was  clearly relevant  in Mollgaard, where the injured person had to show an “expense actually incurred”.  It was also relevant in the common law cases, where the plaintiff was claiming special damages.  I consider that it is not relevant here, where the issue is not whether the

injured person has incurred an expense, but whether he or she has suffered a loss. As I have said, I consider that the loss of bodily function for which the attendant care and assistance is necessary is a “loss” for the purposes of subs (1).  It is not, on that analysis, necessary to examine whether or not the injured person is under a legal obligation to pay the cost of the attendant care.   From feelings of humanity, compassion, and love, a family member may provide care to the injured person which goes beyond the bounds of the legal obligations which would apply to the provision of that care on a commercial basis.  That care will alleviate, to a limited extent, the consequences for the injured person of the loss of bodily function.  In this way, the loss suffered by the injured person will be spread in part across the wider family.  The total loss arising from the loss of bodily function nevertheless remains a

loss which is to be compensated under the accident compensation scheme.

26     Kirkham v Boughey [1958] 2 QB 338 at 342, [1957] 3 All ER 153 at 156; Janney v Gentry

[1966] 110 Sol Jo 408.

27     Best v Samuel Fox & Co Ltd [1952] AC 716, [1952] 2 All ER 394.

28     Wattson v Port of London Authority, above n 22.

29     Mollgaard, above n 12, at [39]-[47].

[37]     In reaching that view of the proper meaning of ss 121(1) and 80(1), in light of the scheme and purpose of the Act,  I take into account that these are gateway provisions, not entitlement provisions.  If the claim comes within the scope of the section, the issue of whether compensation is payable in that case, and, if so, the amount, are to be decided by ACC.  The nature of subs (1) as a gateway provision supports an inference of parliamentary intention that it should be given a broad interpretation.  It is quite clear that the provision of attendant care to severely injured people is within the statutory scheme.  If that care is provided by a paid carer, the cost can be met by ACC.  If a family member gives up work to provide care, the loss of income can also be met by ACC.   In both cases, that is subject to control and supervision by ACC of the extent and cost of that care.  I can discern no reason why Parliament would have intended to exclude the possibility of ACC allowing (subject to the same control and supervision) some payment to recognise the provision of unpaid care, which potentially saves the cost of a paid carer.

[38]     There would be obvious difficulties in an interpretation which obliged ACC to pay for unpaid attendant care in all circumstances.  The need for that care, and its costs, are issues which must be considered on a case by case basis.  As subs (1) is framed, the interpretation which I favour permits that.  The necessary control over cost is able to be exercised by ACC.

[39]     I do not accept Mr Millard’s alternative submission that s 80(1)(h) leads to a different result under the 1982 Act.  As I have discussed, the loss of income suffered by a caregiver which may be compensated under s 80(2)(b) is conceptually different from the loss suffered by the injured person under sub (1), so that they are not “similar in nature”.   The provision of constant personal attention under s 80(3) is also not “similar in nature” to the provision of unpaid attendant care.  The Court of Appeal in Simpson held that “constant personal attention” means that an injured

person requires some level of personal care over a 24 hour period.30     That is a

question of fact in each case.  Attendant care which does not meet that test cannot properly be described as “similar in nature” to care which does, because it is treated differently under s 80(3).  Further, compensation is not “payable under” s 80(3) for

care which does not meet that test.

30     Simpson v ACC, above n 3, at [23].

[40]     I accordingly find that the provision of unpaid attendant care is within the scope of subs (1).

[41]     That  decision  does  not  entitle  any of  the  claimants  to  a  payment  under ss 121(1) or 80(1).   It simply holds that ACC is not precluded from making some payment if the circumstances merit compensation.  Those circumstances will need to be considered in each case.   Any decision will then be subject to the review and appeal procedures in the legislation.

Result

[42]     I answer the question of law posed in this way:  the Authority was correct to determine that a claim for payment for unpaid attendant care is permitted under s 121(1) of the 1972 Act and s 80(1) of the 1982 Act.

[43]     Costs are reserved. The parties may submit memoranda.

“A D MacKenzie J”

Accident Compensation Act 1972

121     Compensation for pecuniary loss not related to earnings

(1)Where a person suffers personal injury by accident in respect of which he has cover under this Act, or where a person dies as a result of personal injury so suffered, the Commission, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him, or in the event of his death to his administrator, in addition to any other compensation and rehabilitation assistance to which he is entitled under this Act, 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 or death, not being—

(a)       Any expense or loss in respect of damage to property; or

(b)Any expense or loss incurred after the death of that person in respect of the administration of his estate; or

(c)      Any expense or loss arising from damage in respect of which, or to the extent to which, no payment is to be made under subsection (1) or subsection (1A) of section 110 of this Act, by reason of subsection (2) of that section; or

(d)      The loss of an opportunity to make a profit; or

(e)       Any loss arising from inability to perform a business contract; 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.]

(1A)    Notwithstanding anything in subsection (1) of this section, unless (in the opinion of the Commission) there are special circumstances that justify a payment being made under that subsection, no payment shall be so made in respect of any expense or loss if the Commission considers that the expense or loss is similar in nature to an expense or loss for which compensation is payable under any other provision of this Act.]

(2)Where a person suffers personal injury by accident in respect of which he has cover under this Act, or where a person dies as a result of personal injury so suffered, the Commission, having regard to any other compensation payable, may—

(a)      Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such compensation as  the  Commission  thinks  fit  for  any quantifiable  loss  of  service proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Commission thinks fit, not being longer than the period for which that member could reasonably have expected to receive the service:

(b)       Pay  to  any  person,  or  to  the  administrator  of  the  person,  such

compensation as the Commission thinks fit for any identifiable actual 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 or in taking any necessary action following and consequential upon the death of the injured person.

(3)Where a person suffers personal injury by accident in respect of which he has cover under this Act and the injury is of such a nature that he must have constant  personal  attention,  the  Commission,  having  regard  to  any other compensation  payable,  may pay to  that  person, or if  it  thinks  fit  to  the administrator of that person, in addition to all other compensation and rehabilitation assistance to which he may be entitled, such amounts as the Commission from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.

(4)Where a person dies as a result of personal injury by accident in respect of which he has cover under this Act, and  any superannuation, pension, or annuity terminates or is reduced upon his death, if in the opinion of the Commission any dependant of the person, being a dependant who was dependent through him on that superannuation, pension, or annuity immediately before the date of the death, suffers any loss of support by reason  of  the  termination  or  reduction  thereof,  the  Commission,  having regard to any other compensation payable and to the circumstances of the dependant  and  to  any  other  relevant  circumstances,  may  pay  to  that dependant such compensation as it thinks fit in respect of the loss which in the opinion of the Commission is so suffered for such period as it thinks fit, not being a period extending beyond the shortest of the following periods:

(a)      A period equal to the expectation of life of a normal person of the same age and sex as the deceased person: or

(b)The  period  for  which  earnings  related  compensation  would  be payable to the dependant under subsection (2) of section 128 of this Act if that subsection applied to the dependant; or

(c)      Any period other than the lifetime of the deceased person for which the superannuation, pension, or annuity would have continued if the deceased person had not died.

Accident Compensation Act 1982

80       Compensation for pecuniary loss not related to earnings

(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 personal 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 in the event of his death to his administrator, 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 or death, 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

(b)Any expense or loss incurred after the death of that person in respect of the administration of his estate; or

(c)      Any  expense  or  loss  arising  from  damage  in  respect  of  which payment is excluded or limited under section 76 or section 77 of this Act; or

(d)      The loss of an opportunity to make a profit; or

(e)       Any loss arising from inability to perform a business contract; 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, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any other compensation payable, may—

(a)      Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such weekly compensation as the Corporation thinks fit for any quantifiable loss of service of a domestic or household nature which was previously provided on a regular basis and which is proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Corporation thinks fit, not being longer than  the  period  for  which  that  member  could  reasonably  have expected to receive the service:

(b)Pay to any person, or to the administrator of the 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 or in taking any necessary action following and consequential upon the death of the injured person.

(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.

(4)Where a person dies as a result of personal injury by accident in respect of which he has cover, and any superannuation, pension, or annuity terminates or is reduced upon  his death, if, in the opinion of the Corporation,  any dependant of the person, being a dependant who was dependent through him on that superannuation, pension, or annuity immediately before the date of death, suffers any loss of support by reason of the termination or reduction thereof, the Corporation, having regard to any other compensation payable and to the circumstances of the dependant and to any other relevant circumstances, may pay to that dependant such compensation as it thinks fit in respect of the loss which, in the opinion of the Corporation, is so suffered for such period as it thinks fit, not being a period extending beyond the shortest of the following periods:

(a)      A period equal to the expectation of life of a normal person of the same age and sex as the deceased person; or

(b)The  period  for  which  earnings  related  compensation  would  be payable  to  the  dependant  under  section  66(2)  of  this Act  if  that subsection applied to the dependant; or

(c)      Any period other than the lifetime of the deceased person for which the superannuation, pension, or annuity would have continued if the deceased person had not died.