Bosman v Accident Compensation Corporation - [2007] NZCA 482

IN THE COURT OF APPEAL OF NEW ZEALAND
CA191/06
[2007] NZCA 482
BETWEENWILLIAM BOSMAN

Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:26 July 2007

Court:William Young P, O'Regan and Arnold JJ
Counsel:J M Miller and T Fong for Appellant

I R Millard QC and P McBride for Respondent

Judgment:2 November 2007 at 11.30 am

JUDGMENT OF THE COURT

AWe answer the question posed in the case stated as follows:
Question:Whether s 149 applies to [the appellant] when throughout the period from [his] accident to immediately before the 1^st day of July 1992, and for some time thereafter, he was in hospital, being cared for by doctors and nursing staff there.
Answer: On the factual basis set out in the question, and on the basis that there is no evidence that the appellant was entitled to compensation under s 80(1) or (2) of the 1982 Act prior to 1 July 1992, the answer is: “No”.

B There is no order as to costs.
REASONS OF THE COURT
(Given by Arnold J)

Introduction
[1]       This appeal, which comes to the Court by case stated, concerns whether the appellant’s claim for compensation is to be assessed under the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act) or the more generous provisions of the Accident Compensation Act 1982 (the 1982 Act). The answer depends on the operation of s 149 of the 1992 Act.
Background
[2]       The appellant was involved in a devastating motor cycle accident in May 1992. He suffered very serious injuries. He was hospitalised for two months, being discharged on 10 July 1992. The extent of his injuries was such that, after he was released from hospital, he required full time care at his home.
[3]       The appellant’s claim for cover under the 1982 Act was lodged on 25 May 1992 some two weeks after the accident. At that time the 1982 Act was still in force. However, on 1 July 1992 while the appellant was still in hospital, the 1992 Act came into force.
[4]       Section 80 of the 1982 Act provided as follows:
Compensation for pecuniary loss not related to earnings –
(1)Where a person suffers personal injury by accident in respect of which he has cover … the Corporation, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him … compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury … , not being—

(a) Any expense or loss in respect of damage to or diminution in value of property (whether real or personal, tangible or intangible, or movable or immovable) or any estate or interest in such property; or
…
(f) Any loss that has not for the time being actually occurred, whether or not the amount thereof is ascertainable before it occurs; or
(g) Any expense or loss in respect of or towards payment of which compensation…

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.

Keep reading for free

Create a free CaseChat account to read Bosman v Accident Compensation Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NZCA 482
Decision Date: 2 November 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Bosman v Accident Compensation Corporation (CA191/06) was heard and decided on 2 November 2007. The central issue in this case was whether the appellant, William Bosman, was entitled to compensation under the more generous provisions of the Accident Compensation Act 1982 (1982 Act) or if his claim should be assessed under the Accident Rehabilitation and Compensation Insurance Act 1992 (1992 Act). This determination hinged on the interpretation and application of section 149 of the 1992 Act. Bosman, who was involved in a severe motorcycle accident in May 1992, was hospitalised until July 1992 and required constant care upon his release. His claim for compensation was lodged under the 1982 Act, but the 1992 Act came into force while he was still hospitalised.

The appellant argued that he was entitled to compensation under the 1982 Act, particularly under section 80, which provided for compensation for pecuniary loss not related to earnings. He contended that the transitional provisions of the 1992 Act, specifically sections 135, 136, and 149, meant he should receive compensation under the more generous terms of the 1982 Act. The Court examined whether Bosman had an entitlement to compensation under section 80 as of 30 June 1992. While acknowledging that an entitlement could exist without actual receipt of compensation, the Court concluded that Bosman did not have a rightful claim to attendant care compensation under section 80(3) prior to his release from hospital. The Court reasoned that the Corporation would not have known the relevant facts until Bosman was discharged, at which point they could assess his needs. Therefore, the Court ruled that section 149 did not apply to Bosman, and he was not entitled to compensation under the 1982 Act. The Court made no order as to costs.

Orders