Larkin v Accident Compensation Corporation - [2020] NZCA 597

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA348/2020
[2020] NZCA 597

BETWEEN	KURTIS LARKIN Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:	Clifford and Courtney JJ
Counsel:	J M Miller and T W R Lynskey for Applicant H B Rennie QC and C J Curran for Respondent
Judgment: (On the papers)	26 November 2020 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Kurtis Larkin was born on 4 January 1992. At birth he suffered a very serious and permanent brain injury after foetal blood was lost into maternal circulation, causing oxygen deprivation which has manifested in cerebral palsy, quadriplegia and epilepsy. Mr Larkin has seizures every day and is dependent on others for all aspects of daily life.
Mr Larkin’s injury was the result of a treatment injury and he was entitled to compensation under the then Accident Compensation Act 1982 (the 1982 Act). However, Mr Larkin’s mother, Ms Hoare, was not made aware of this until 2005. A claim lodged at that time was accepted by the Accident Compensation Corp (ACC) following a District Court judgment in 2011.[1] Mr Larkin has received attendant care funded by ACC since 16 May 2011.[2]
[1]Larkin v Accident Compensation Corp [2011] NZACC 60.
[2]After ACC sought to reduce Mr Larkin’s hours of attendant care, he again brought a successful appeal to the District Court confirming his entitlement to 24-hour care: Larkin v Accident Compensation Corp [2014] NZACC 311.
The issue in this application is the extent to which ACC may retrospectively compensate Mr Larkin for attendant care he received before that date. As Mr Larkin’s claim was filed when the Accident Compensation Act 2001 (the 2001 Act) was in force,[3] the issue falls to be determined by the transitional provisions of that Act and its predecessors. ACC believes these only permit Mr Larkin to be paid from his birth to 30 June 1993 and from 1 April 2002 onwards, with the intervening period excluded. Mr Larkin, represented in these proceedings by Ms Hoare as his litigation guardian, believes the legislation permits ACC to compensate him for the entire time.
[3]Then called the Injury Prevention, Rehabilitation, and Compensation Act 2001.
Successive decisions in the District Court and High Court found in favour of ACC.[4] Mr Larkin now seeks special leave to appeal to this Court.[5]

Background

Legislative framework

[4]Hoare v Accident Compensation Corp [2018] NZACC 177 [District Court decision]; and Larkin v Accident Compensation Corp [2019] NZHC 3085 [High Court decision].

[5]Leave to appeal was declined by the High Court: Larkin v Accident Compensation Corp [2020] NZHC 1234 [High Court leave application].

This application draws upon four iterations of the accident compensation legislation:
(a)the 1982 Act, which was in force at the time Mr Larkin suffered his injury;
(b)the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act), which entered into force on 1 July 1992;
(c)the Accident Insurance…

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: [2020] NZCA 597
Decision Date: 26 November 2020 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Larkin v Accident Compensation Corporation involved Kurtis Larkin, who was born with a permanent brain injury resulting in cerebral palsy, quadriplegia, and epilepsy. Larkin was entitled to compensation under the Accident Compensation Act 1982, but his mother was not made aware of this until 2005. The main issue in this case was the extent to which the Accident Compensation Corporation (ACC) could retrospectively compensate Larkin for attendant care he received before a specific date. The transitional provisions of the Accident Compensation Act 2001 and its predecessors determined the issue, and ACC believed they could only compensate Larkin from his birth until 30 June 1993 and from 1 April 2002 onwards. Larkin, however, believed the legislation permitted ACC to compensate him for the entire time.

The Court of Appeal concluded that the application for leave to appeal was declined. The reasoning behind this decision was that the provisions in question could not reasonably be construed in the manner Larkin desired. There was no ambiguity in the legislation, and it was not the case that Parliament had mistakenly overlooked the need to enact savings or transitional provisions that the court would then infer from ordinary principles of interpretation. The Court found that the difference between the sections was clear, and the suggested interpretation of the provisions would render other subsections redundant. Additionally, the Court was not persuaded that there was a controversy in the High Court authorities that ought to be resolved by this Court. Therefore, the application did not raise a question of law capable of bona fide and serious argument.

Orders