Cummings v Accident Compensation Corporation HC Wellington CIV-2006-485-763

[2007] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2006-485-763

BETWEEN  JESSIE CUMMINGS Appellant

AND  ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         21 June 2007

Appearances: J M Miller for Appellant

I R Millard QC & L Rice for Respondent

Judgment:      29 August 2007

In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 2.15 pm on the 29th day of August 2007.

JUDGMENT OF CLIFFORD J

Introduction

[1]      Jessie Cummings, the appellant, was born on 27 September 1997.   At birth Jessie suffered an accident, aptly described by District Court Judge Beattie in the decision on appeal as a serious and tragic injury, that resulted in her being severely disabled with cerebral palsy.  That cerebral palsy was caused by birth asphyxia, that is, lack of oxygen during the process of birth.   There is, now, no dispute that this accident constituted a medical misadventure covered by Accident Compensation.

[2]      It was some time, however, before any claim  for  cover  and  entitlements under the Accident Compensation scheme were made on her behalf.

CUMMINGS V ACC HC WN CIV-2006-485-763  29 August 2007

[3]      On or about 12 September 2001, by which time Jessie was almost four years old, her mother completed an injury claim form.  That claim for cover was rejected by the Accident Compensation Corporation (“ACC”), in a letter of 8 January 2002, on the basis of lack of supporting information.

[4]      Jessie’s  parents  made  a  further  claim  for  cover  and  for  entitlement  to attendant care on 25 January 2002.  ACC approved this claim on 25 November 2002 in terms of the legislation in force at the time of that  application, the Accident Insurance Act 1998 (“the 1998 Act”).  ACC backdated payment of the entitlement to attendant care to the date of that application, 25 January 2002.

[5]      Jessie’s parents subsequently applied to have her entitlement to attendant care backdated to 27 September 1997, the date of her injury.  ACC declined this request on 16 December 2002.  Jessie’s parents challenged that decision.  An ACC Reviewer found that ACC was correct.   Jessie’s parents appealed to the District Court.   For reasons I will refer to later, Judge Beattie declined that appeal.

[6]      Jessie’s parents then applied for, and were granted, leave to appeal to this Court on a question of law.   The question of law for which leave to appeal was granted was whether the statutory provisions of the 1998 Act allow attendant care to be paid from the date of injury, or only from the date of the claim for the injury or from the date chosen by ACC in Jessie’s case, namely the date of the relevant application for attendant care.

[7]      The 1998 Act has now been repealed but it is under those repealed provisions that this appeal is to be considered.

The District Court decision

[8]      Judge Beattie held that Jessie’s claim to an entitlement to attendant care was to be considered under the ordinary – as opposed to the transitional – provisions of the 1998 Act.  He accepted ACC’s central argument that those provisions, as they relate to rehabilitation entitlements of which attendant care is one, were essentially forward looking.

[9]      Judge Beattie concluded that the scheme of the 1998 Act would not allow payment of an entitlement – where applied for in respect of personal injury occurring prior to the commencement of that Act – to be retrospective to the date the personal injury occurred, unless a provision to that effect was specifically provided.  He found there was no such provision.

[10]     He  further  held  that  clear  legislative  wording  would  be  required  before payment of an entitlement could be backdated to a date earlier than the date on which it was applied for.  Again, such wording was not to be found in the 1998 Act.

[11]     Judge Beattie therefore upheld ACC’s decision to pay attendant care to the appellant only on and from the date of the application made on her behalf for that entitlement.

Submissions on appeal

[12]     For the appellant, Mr Miller advanced arguments on Jessie’s behalf under the Accident Compensation legislation in force at the time of Jessie’s birth, that is the Accident Insurance Act 1992 (“the 1992 Act”), and under the 1998 Act.

[13]     Mr Miller’s principal submissions were made with respect to the 1998 Act.

[14]     Mr Miller noted that the 1998 Act does not specifically provide for a start date for attendant care.  This was to be contrasted with the position under the 1992

Act.   For the purposes of the 1992 Act, reg 8 of the Accident Rehabilitation and

Compensation Insurance Act (Social Rehabilitation – Attendant Care) Regulations

1993 specifically provided a start date.  That was the date of the written application, or the date of discharge from hospital following initial treatment for the relevant personal injury, whichever was the later.   As that provision had been repealed, it could not be said that the scheme of the 1998 Act only provided for payment from that date.  This could be contrasted with the provisions under the 1998 Act as regards independence allowances.   Clause 63 of Schedule 1 specifically provided that an independence allowance was only to be paid from the date on which an insured

lodged the claim for cover for the personal injury which gave rise to the claim for an independence allowance.

[15]     Mr Miller referred to the purposes of the 1998 Act, particularly as set out in ss 2, 7 and 8, and the attendant care provisions set out in Part 3 of Schedule 1 of the

1998 Act.

[16]     Mr Miller’s submission was that  it  was clear  from the nature of Jessie’s injury that she would require attendant care from the date of her discharge from hospital.  There was nothing to prevent ACC paying attendant care backdated to that date.

[17]     More generally, under the ACC legislation the appellant had lost the right to sue for damages for personal injury.   If she had had that right, her entitlement to damages would have included costs, like attendant care, from the date of her injury. It was appropriate, given the absence of any fixed start date in the statutory scheme and taking an un-niggardly approach, for ACC to calculate the appellant’s attendant care entitlement from the date of her discharge from hospital.

[18]     Alternatively, 1 July 1999, the date upon which the 1998 legislation came into force, was an appropriate start date.  Under s 423(2) the appellant was deemed to have been injured on 1 July 1999.  Again, reg 8 having been revoked, this was the date upon which her entitlement for attendant care arose under the 1998 Act, and accordingly was the date from which it should be paid.

[19]     If not that date, then the attendant care entitlement should certainly be paid from the date of the making of the first claim for cover, which was 12 September

2001.

[20]     Mr Miller also referred to a letter of 9 May 2000 addressed to ACC by a paediatrician, Dr Austin, drawing attention to the appellant’s situation.  He sought to rely on that letter, and the date it was written as an appropriate start date.

[21]     That claim raised questions of fact as to whether and when that letter had ever been sent.  These matters would appear to have been considered by the District Court, and findings made.  Given that this was an appeal on the point of law I have set out in [6], I indicated at the hearing of this appeal that I did not consider I was in a position to resolve that matter, as it depended essentially on a factual finding.   I now confirm that position.

[22]     Mr Miller recognised that – given that the 1992 Act had been repealed – his argument relying on that Act was more radical.  His proposition was, however, that cover devolved upon a person like citizenship.   Accordingly, the appellant having been injured during the period of time during which the 1992 Act was in force, she had cover under that Act notwithstanding its repeal.

[23]     For ACC, Mr Millard’s essential argument here, as in the District Court, was that the scheme for the payment of attendant care, and indeed other entitlements to rehabilitation, under Part 3 of Schedule 1 to the 1998 Act was essentially a forward looking one.   The statutory scheme, and the language of Part 3, envisaged ACC making assessments of the need  for  rehabilitation,  including attendant  care,  and providing  that  rehabilitation  on  a  forward  looking  basis.     For  example,  the requirement to consider alternatives and options was irrelevant to past needs.  ACC’s identification of the date of the making of a claim for attendant care, which it had done as a matter of policy, was an appropriate one.   That decision recognised the scheme of the legislation.  It also provided a discipline on any tendency that ACC or other insurers might otherwise have had to be tardy in the recognition of claimants’ entitlement to such benefits.

[24]     Given  the  scheme  of the  1998  Act,  the  fact  that  a  person  had  suffered personal injury by accident for which they had cover did not automatically mean they had a right to entitlements under Part 3.  The concept that the 1998 Act was a claims based one was seen in the combination of ss 54, 56, 58 and 61.   These envisaged that a claim was made, the need assessed and assistance then provided.  In relation to attendant care, this was consistent with the concept that such care was for ongoing rehabilitation, rather than being compensation for past care or expenses. Entitlements to statutory entitlements, that somewhat circular phrase reflecting the

wording of s 79, required assessment, and were to be distinguished from the entitlements   to   compensation   for   loss   of   earnings   payments,   independence allowances and death benefits.   Conceptually, those entitlements could be seen as compensatory payments, more akin to common law damages, than was the case with rehabilitation benefits.

[25]     It was not a valid argument to refer to what might have been the position as regards common law damages entitlements.  ACC v Nelson [1979] 2 NZLR 464 at

466 was authority for the proposition that the Accident Compensation scheme had replaced fault based damages with a no fault scheme, but that the entitlements of that scheme were a cushion rather than full restitution.

Discussion

The question in this appeal

[26]     The question of law in this appeal, as set out in [6], can be understood by reference to the general policy adopted by ACC as regards the earliest date for the payment  of rehabilitation assistance.    In the  appellant’s  case,  ACC  had  in  fact assessed her entitlement to attendant care benefits, relative to the date of assessment, in arrears.   That is, after she had filed her application for that entitlement, ACC assessed her as at the date of her application, and backdated payment of attendant care benefits to that date.  During the hearing, I inquired of counsel for ACC as to the details of ACC’s policy in this regard.   Following the hearing of this appeal, counsel for ACC, with the concurrence of counsel for the appellant, filed a memorandum attaching a copy of the relevant part of ACC’s policy manual.   That document, headed “Earliest date rehabilitation assistance is payable”, records that the earliest date ACC will pay vocational or social rehabilitation entitlements from is the first date the claimant lodged an application for that assistance.  The document then sets   out   various   circumstances   in   which   ACC   will   consider   “arrears”   for rehabilitation assistance.  In certain circumstances – to which I shall return – ACC will reimburse rehabilitation costs incurred by a claimant during the period from the date on which the claimant first applied for assistance, up until the later point in time at which cover is granted or an entitlement to rehabilitation assistance recognised.

[27]     The question in this appeal is, therefore, whether ACC is legally correct in regarding  itself as  not  being  able under  the  1998  Act to  pay an  attendant  care entitlement with respect to any period prior to the date upon which the application for that entitlement was lodged with it.

[28]     The further question which I think is raised by this question of law, if I were to decide that ACC was wrong in regarding itself as so constrained, is what is the earliest date by reference to which such an entitlement may be paid.

Context – the statutory scheme

[29]     To provide a context for my consideration of these issues, I will record my understanding, as briefly as I can, of the relevant aspects of the statutory scheme as it applied under the 1998 Act.

[30]     Section 8 established the fundamental right  of those who  suffer  personal injury to receive entitlements from their insurers.  It did so in the following terms:

Persons who suffer personal injuries covered by the scheme must receive from their insurers entitlements for which they are eligible from the range of statutory entitlements detailed in Schedule 1.

[31]     The range of available entitlements comprised:

a)       Treatment;

b)       Weekly compensation;

c)       Rehabilitation;

d)       Independence allowances;  and e)           Entitlements from fatal injuries,

all as set out in Parts 1 to 5 respectively of Schedule 1.

[32]     The concept of cover was dealt with extensively in Part 3 of the 1998 Act itself.  Cover for personal injury suffered before 1 July 1999 derived from ss 421-

423.  Cover for personal injury suffered on or after 1 July 1999 derived from ss 39-

41.    Cover  derived  from  the  relevant  statutory  provisions  themselves.    Cover therefore existed, in my view, irrespective of a claim for cover.  A person with cover, however, would not have an enforceable right to receive an entitlement unless a claim for that cover, and that entitlement, had been made under Part 4.

[33]     Once a claim was made, as provided in s 54, various provisions in the 1998

Act determined the period – where relevant – by reference to which entitlements, other than in respect of rehabilitation, were to be calculated and paid:

a)        Treatment:

•   Payment for treatment could be made retrospectively with respect to the date of the claim, as is fairly obvious.  It is in the nature of things that  treatment  will  often  be  provided  before  a  claim  is made.  The use of the words “has been, or will be” in cl 2 of Part 1 of Schedule 1 made this clear.  Treatment included, of interest to this appeal, physical and cognitive rehabilitation.

b)       Weekly compensation:

•   The commencement of the period by reference to which weekly compensation   was   payable   was   determined,    again   fairly obviously, by the date of the personal injury.  Various provisions in the 1998 Act reflected this, particularly s 76, as regards first week compensation, and cl 7(2) of Schedule 1 as regards weekly compensation, again on the basis of claims made and accepted sometime after that date.

•   The length of the period during which compensation was paid was principally determined by provisions dealing with capacity to work.

•   That capacity was to be determined on an ongoing basis “from time to time” (s 84(1)).   Where, pursuant to s 89, entitlement to weekly compensation was lost due to the insured regaining their capacity to work, that loss of entitlement took effect three months after the insured was notified to that effect.

•   If the insurer determined that an insured no longer had a capacity for work, the insured regained his or her entitlement to weekly compensation “and the regained entitlement starts from the date of the determination or an earlier date determined by the insurer”. The reference to the regained compensation starting from “an earlier date” would appear to provide a way for the insurer to backdate the regained entitlement to recognise when the capacity to work was lost.

c)        Independence allowances:

•   Pursuant to cl 63(b) of Schedule 1, an insurer was liable to pay an independence  allowance  on  and  from  the  date  on  which  the insured lodged the claim for cover for the personal injury from which the relevant impairment resulted.

•    Two points are to be noted:

(i)  The independence allowance was to be paid on and from the date on which the claim for cover was made, notwithstanding that the claim for entitlement to that independence allowance may not have been made until some time later.

(ii) The assessment  of the degree of impairment  would  not  be made until a person’s condition had stabilised, or 52 weeks had passed from the date of the occurrence of the personal injury, whichever was the shorter period.

d)       Entitlements arising from fatal injuries:

•   Surviving   spouses,   surviving   children   and   other   surviving dependents of a deceased insured were entitled to receive grants and  weekly  compensation.     Children  were  also   entitled  to childcare.  Weekly compensation and childcare payments (to the child’s caregiver) were made on and from the date of the death of the deceased insured, irrespective of the date on which the claim for that entitlement was made or determined.

[34]     As  can  be  seen  therefore,  the  scheme  of  the  1998  legislation  was  that decisions regarding cover and entitlement were made after the occurrence of the personal injury as a result of which those claims were made.   Furthermore, entitlements which arose following a “covered” personal injury were paid in arrears, including in the case of treatment, weekly compensation and entitlements arising from fatal injuries, by reference to periods commencing prior to the date on which the claim for cover was made.  In the case of independence allowances, the statute explicitly provided that an independence allowance could not be paid by reference to a period commencing prior to the date on which claim for cover for the personal injury involved was made.  Independence allowances were payable, however, with respect to periods prior to the date upon which claims for that particular entitlement were made.

[35]     The 1998 Act operated, in a practical sense therefore, on the basis that claims for cover, and for entitlements, would be made after the occurrence of the event or events which gave rise to the cover and the right to the entitlement.  Furthermore, the benefit of entitlements could be paid “in arrears”, with reference to periods prior to the date upon which any claim for cover had been made.

Rehabilitation – the “forward looking” argument

[36]     Turning  now to rehabilitation entitlements, I  formed  the  view  during  the hearing of this appeal that there was considerable strength to the essential thrust of Mr  Millard’s  argument,  namely  that  the  scheme  of  the  1998  Act  as  regards

rehabilitation was a forward looking one.  The legislation, in large part, seemed to envisage that a person would be assessed as to their need for rehabilitation, and that it was generally only after such an assessment had been carried out that entitlements to rehabilitation were recognised which, in turn, gave rise to a liability on the part of an insurer in that regard.

[37]     On this point Judge Beattie found at [23]:

A condition of  eligibility is  that  the insured has  to  be first  assessed  as needing a particular entitlement rather than being assessed as having needed it, and I find that it would require clear wording to say that the entitlement, once assessed, was to be back-dated to any date earlier than when it was applied for.

[38]     It was Mr Millard’s argument, in effect, that until a need for a particular rehabilitation entitlement  was  identified,  that  entitlement  could  not  be  provided. Once the need had been identified, that entitlement could only be provided from that point of time forwards, and on an ongoing basis.   The 1998 Act’s scheme was a needs based one, providing assistance for future rehabilitation, not compensation for past expenses.

[39]     Clause 28 established an entitlement to rehabilitation, “to the extent provided by this Act”.

[40]     Clause 30 required an insurer, within 13 weeks of accepting a claim for cover, to determine whether an insured was likely to need rehabilitation after the 13 weeks had ended and, if so, to agree to an individual rehabilitation plan.  Clauses 30 to 35 dealt  with the preparation of individual rehabilitation plans,  and spoke in general terms of a plan being implemented, i.e. rehabilitation being provided, after the plan had been agreed (cl 33(2)).

[41]     Notwithstanding those provisions, cl 29(1) provided that, before an individual rehabilitation plan was prepared, the insurer “was liable to provide the insured with rehabilitation in accordance with this schedule”.

[42]     Schedule 1 then dealt with rehabilitation by reference to the concepts – not separately defined – of social and vocational rehabilitation.   Social rehabilitation

included a number of specific “key aspects” (s 39(1) – including attendant care) and also extended to “other” social rehabilitation.

[43]     Pursuant to cl 39(2), an insurer was liable to provide any key aspect of social rehabilitation to the insured if:

•   The insured was assessed or reassessed as needing that aspect of social rehabilitation;  and

•   The  insurer  considered  that  the  aspect  of  social  rehabilitation  was necessary to assist the insured to undertake the activities of daily living to the greatest extent possible, having regard to the consequences of his or her personal injury (cl 58);  and

•   That  rehabilitation  was  necessary and  appropriate,  and  of  the  quality required, for that purpose and was of a type normally provided by the rehabilitation provider.

[44]     Liability to provide a key aspect of social rehabilitation was also subject to that key aspect having been agreed in the insured’s individual rehabilitation plan, if a plan had been agreed.

[45]     It was particularly by reference for the need for an assessment by an insurer before a liability to provide attendant care arose, that Mr Millard argued as to the “forward looking” scheme of the legislation in this area.  To allow rehabilitation for periods even before the claim was notified would unduly expose insurers to potential claims of which they were unaware and for which no proper assessment had been made, let alone agreement obtained.  The scheme of the Act also meant there was a measure of control over what was claimable.   That scheme clearly contemplated prior approval.

[46]     Whilst initially attracted to that line of argument, I am now not persuaded that a consideration of the scheme of the 1998 Act as regards rehabilitation, or a more general consideration of the statutory scheme, supports it.

ACC’s policy

[47]     In the first instance, ACC itself, and the policy that it adopted, recognised an ability to assess at one date, but to provide attendant care, and other rehabilitation benefits, from an earlier date.  The policy document provided to me records, as noted above, that  “the earliest  date ACC would pay vocational or social rehabilitation entitlements from, was the first  date the claimant  lodged an application  for  her assistance”.

[48]     ACC  considered  paying  arrears  for  vocational  and  social  rehabilitation assistance in a number of different situations.   These were, using the words from ACC’s policy document, where:

•   Cover for an injury claim was determined after a claimant applies for rehabilitation assistance

•   An   injury,   initially   declined   cover,   has   its   covered   decision overturned on review or after an appeal

•   In  complicated  cases  such  as  medical  misadventure  and  gradual process claims, ACC could use the date of application as the point from which  social  and  vocational  rehabilitation  can  be  funded  if cover is later granted.

[49]     In those situations, ACC, in considering paying arrears for assistance, would

– again as expressed by ACC in its policy document – perform an assessment to:

•    Confirm there was a need for the assistance prior to cover being rewarded

•    Get an objective opinion on how much assistance the claimant needed at that time (which affects the level of arrears that might reasonably be paid)

•    Double  check  whether  or  not  there  was  a  current  need  for  social rehabilitation assistance.

[50]     Therefore, whilst entitlement to cover was conditional upon an assessment, it cannot be said that that conditionality operated in a temporal sense, only allowing entitlements to be paid on a “forward looking” basis.   Rather, ACC itself acknowledged that its process would involve the assessment of entitlements to rehabilitation benefits in arrears, and by reference to criteria which determined the need of a claimant, at relevant points in time in the past, to rehabilitation.  This was an assessment of the appropriateness of rehabilitation which had been provided and for which reimbursement was sought.  Whilst the fact that ACC was prepared to pay rehabilitation by reference to the date of claim was acknowledged on behalf of ACC in this appeal, and by the District Court Judge, in my view that approach – the correctness of which I do not doubt – can not easily be recognised with the “forward looking” interpretation argument advanced on ACC’s behalf.

[51]     In reality,  ACC did assess past  entitlements,  and  applied  the  assessment criteria of Schedule 3 to circumstances that existed in the past to determine whether arrears should be paid for rehabilitation provided to the claimant prior to that assessment being made.

[52]     The legal question in this appeal in effect becomes, therefore, whether – as a matter of law – under the  1998  Act  the  earliest  date by reference  to  which an attendant care entitlement could be paid “in arrears” was the date of the application for that specific entitlement.

[53]     I have on balance reached the view, acknowledging in this as in other areas the complexity of this legislation, that as a matter of law the 1998 Act did not so provide.  I say that for a number of reasons.

[54]     With reference to the analysis I have set out  at [29] to [35], the general scheme of the Act – as regards entitlements other than for rehabilitation – was that claims for cover, and for entitlements, would be made after the occurrence of the event or events which gave rise to the cover and the right to claim the entitlement. Furthermore, the benefit of entitlements could be paid “in arrears”, with reference to periods prior to the date upon which any claim for cover had been made.   The question, in effect, becomes whether that general approach applies as regards an entitlement to attendant care, or whether the 1998 Act imposes a more restrictive approach, as asserted by Mr Millard for ACC.

[55]     First,  there  were  the  expressions  of  entitlements  in  s  79  and  cl  28(b). Clause 28(b), as relevant, provided that:

an insured who has suffered personal injury for which he or she has cover is entitled to be provided by the insurer with rehabilitation, to the extent provided by this  Act,  to enable the insured to lead as  normal  a  life as possible, having regard to the consequences of his or her personal injury.

[56]   Clause 29(1), recognising an entitlement to rehabilitation (expressed by reference to the liability of an insurer) prior to the preparation of the  individual rehabilitation plan, reflected that cl 28(b) entitlement.

[57]     On that basis, s 79, and in turn cl 28, created the entitlement, albeit subject to assessment.  By reference to cl 44, it was the nature and extent of an insured’s injury, and the impact that it had on them, that was principally determinative of the extent of attendant care to which that entitlement gave rise.  That required assessment, but the need for an assessment does not, in my view, preclude the recognition of the entitlement on and from the date of injury.

[58]     As recognised by ACC’s own policy regarding the payment of rehabilitation assistance in arrears, the assessment provisions can be applied retrospectively just as they can be applied prospectively.   That retrospective application gives ACC the measure of control over what is claimable which it clearly needs.  That measure of

control, however, is not lost because the scheme allows for arrears to be paid with respect to a period prior to the date of the notification of the claim.  The assessment process can be just as efficacious with respect to such a period, as it can be with respect to arrears for a period from the date of the claim up until the date the assessment is carried out.   A claimant is equally “vulnerable”, if that is the right word, to ACC making its assessment and declining to pay arrears, whether or not the claim is with respect to the period prior to or after the date upon which the claim is itself lodged.

Implications of place of rehabilitation in the general scheme

[59]     This approach is, in my judgment, also supported by a consideration of the place of rehabilitation in the scheme of the 1998 Act.

[60]     The provision of rehabilitation, and a focus on the process of rehabilitation – that is the process of the provision of assistance aimed at helping and enabling an injured person to lead as normal a life as possible, having regard to the consequences of their personal injury (s 13) – were central features of the 1998 Act.  The purpose of the 1998 Act, as reflected in its long title, was expressed by reference to the twin goals of rehabilitation and compensation.

[61]     Rehabilitation was defined by reference to the general concepts of mental, physical, social and vocational function.  Physical and cognitive rehabilitation were defined (s 3) as being included within treatment.  Social and vocational rehabilitation were the focus, more obviously, of Part 3 of Schedule 1.

[62]     The use of the general phrase “rehabilitation” in clauses 28 to 33 of Part 3 of Schedule  1,  suggested  that  those  provisions  could  also  apply  to  physical  and cognitive rehabilitation.   On that basis, and as regards physical and cognitive rehabilitation, cl 28 would duplicate cl 1, and Part 3 of Schedule 1 would apply also. Although I did not receive submissions on this point, given the express inclusion of physical and cognitive rehabilitation in the definition of treatment, and the separate entitlement to treatment found in clauses 1 and 2 of Part 1 of Schedule 1, I tend to the view that Part 3 was aimed at social and vocational rehabilitation only.

[63]     There would,  in  fact,  appear to  have  been a  complementary relationship between   physical   and   cognitive   rehabilitation,   and   social   and   vocational rehabilitation.

[64]     Clause 28(b) provided that an injured person was entitled to rehabilitation to the extent provided by the Act to enable them to lead as normal a life as possible “having regards to the consequences of his or her physical injury”.   This, in my opinion, indicates that rehabilitation to be provided under Part 3 responded – at any particular point in time – to the condition of an insured, as reflected by progress – at that point in time – with the process of cognitive and physical rehabilitation.

[65]     Attendant  care entitlements under the 1998 Act  can therefore  be seen to support an insured in those aspects of their life where, at any time, their  injury impacts upon them and physical and cognitive rehabilitation has not ameliorated the effects of that injury.  It would therefore seem strange if the Accident Compensation scheme under the 1998 Act had provided for the cost of that physical and cognitive rehabilitation, but not for the complementary need for attendant care – to the extent assessed as being appropriate under Part 3 – at the same point in time.

[66]     In my judgment therefore, the general scheme of the 1998 Act, and of Part 3 of Schedule 1 in particular, was that whilst an entitlement to attendant care was dependent upon an assessment being made, that does not mean as a matter of law that attendant care – properly assessed as being appropriate and as having been received by the claimant prior to the date of their claim – could not in fact be paid for by an insured.

More specific arguments

[67]     There were a number of more specific provisions of the 1998 Act which also support that conclusion.

[68]     As noted by Mr Miller, a previous provision of the 1992 scheme, reg 8, specifically  limited  the  extent  to  which  attendant  care  entitlements  might  be

“backdated”.  When the 1998 Act came into force, reg 8 was repealed.  That would tend to indicate that that limitation was no longer intended to apply.

[69]     Clauses 44(d), 45(d) and 46(e) of the Act all stipulated – as relevant criteria in the decision as to whether attendant care, childcare and home help were to be provided  –  the  extent  to  which  such  “assistance”  might  have  been,  or  might reasonably be expected to have been, provided after the insured’s personal injury by a household member.   This, in my view, supports the conclusion that the period commencing on and from the personal injury was the relevant period as regard the provision of those entitlements.   Likewise, clauses 45(4) and 46(3) contained disentitling provisions operating again by reference to the period immediately before the date on which the insured suffered his or her personal injury.  This also supports that conclusion.

[70]     Finally, in this context, the fact that cl 68(b) provided a fixed backdating provision for independence allowances does not, in my view, support the conclusion that a similar provision is to be applied to attendant care entitlements.   Rather, the specific inclusion of that provision can be seen as supporting the conclusion that, if the legislature had intended that  an equivalent  provision apply to  attendant  care entitlements, it would have so provided.

Conclusion

[71]     I therefore determine the point of law raised by this appeal by concluding that the 1998 Act did not only allow attendant care to be paid from the date of the claim for cover for the injury or the date of application for attendant care.  In my view, the

1998 Act did allow ACC to pay attendant care entitlements, subject to assessment in the manner required by Schedule 3, from dates prior to either of those two dates. The question becomes, what would be the earliest date by reference to which ACC would be entitled to pay attendant care?

[72]     In general terms, I think, on the basis of my analysis set out in this judgment, the correct approach to that question is to fix the date of injury as the earliest such date.   In the case of the appellant,  however,  she  is to  be dealt  with  under  the

provisions of the 1998 Act applying to injuries suffered prior to its enactment, but for which no claim for care had then been made.  These provide that she is deemed to have been injured on the commencement date of the 1998 Act, and in her case that would be the appropriate earliest date.

[73]     What is now required is for ACC to assess, in terms of the relevant provisions of Schedule  3,  the  extent  to  which  attendant  care  may  have  been  provided  to Jessie Cummings, no doubt by her parents and others, in circumstances where she had  an  entitlement  to  have  that  attendant  care  provided  to  her  by  ACC.    The provisions of cl 44(d) and (e) would appear to be of particular relevance to that assessment process.

[74]     I  comment  that  in  reaching  my decision,  I  have  done  so  specifically  as regards entitlements to attendant care.  There may be considerations relating to other social and vocational entitlements that mean that  a different  approach, as to the earliest possible date of entitlement, is called for, and that the policy adopted by ACC as regards those entitlements may be in accordance with the legislative scheme.

[75]     In the circumstances, I do not consider it necessary to consider the arguments made by Mr Miller under the 1992 Act.  However, I think that those arguments faced the insuperable obstacle that they clearly flew in the face of the legislative scheme. This was particularly so given the way in which the provisions of the 1998 Act expressly dealt with questions of cover and entitlement as regards personal injuries suffered prior to the commencement date of that legislation, but in respect of which claims had not been made under earlier legislation.

[76]     I also note that Mr Millard raised issues relating to concerns arising from the

“reopening” of claims, were I to hold as I have now done that the scheme of the 1998

Act does not preclude ACC from recognising an entitlement to attendant care for a period prior to the date on which the claim for that specific entitlement was made. My view here, which accords with Mr Miller’s submission, is that issues relating to the reopening of claims, if they are indeed relevant, should not be determinative. Insurers, and ACC in particular, could be expected – I would have thought – to determine their exposure to claims for cover and entitlement by reference to the

incidence of personal injuries themselves, rather than the timing of those claims.  To the extent considered necessary, s 61(2) would appear to address issues relating to the timeliness with which insureds lodged claims.

[77]     I did not understand any question of costs to arise.  If my understanding is not correct, and if counsel are unable to agree on the question, counsel may file memoranda with me no later than 30 September.

Clifford J

Solicitors:

John Miller Law, Wellington, for Appellant
Accident Compensation Commission Legal Services, Wellington, for Respondent