Larkin v Accident Compensation Corporation - [2019] NZHC 3085

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-135

[2019] NZHC 3085

UNDER the Accident Compensation Act 2001

IN THE MATTER OF

an appeal under s 162 of the Act

BETWEEN

KURTIS LARKIN (by his litigation guardian Penelope Hoare)

Appellant

AND

ACCIDENT COMPENSATION CORPORATON

Respondent

Hearing: 15 August 2019

Appearances:

T W R Lynskey and J V Copland for Appellant H B Rennie QC and C J Curran for Respondent

Judgment:

26 November 2019

JUDGMENT OF CLARK J

Introduction

[1] This appeal concerns the proper interpretation of the transitional provisions of the Accident Compensation Act 2001 (the 2001 Act) for the payment of attendant care. The appellant, Mr Larkin, was denied back-payment of his attendant care costs between 1 July 1993 and 31 March 2002 on the basis that the respondent, the Accident Compensation Corporation (ACC), has no power to compensate Mr Larkin for that period. Mr Larkin’s application for review of that decision was declined on 16 November 2012. Mr Larkin then appealed that decision to the District Court

LARKIN (by his litigation guardian Penelope Hoare) v ACCIDENT COMPENSATION CORPORATON [2019] NZHC 3085 [26 November 2019]

through his litigation guardian, Ms Hoare, who is Mr Larkin’s mother. On 8 November 2018, Judge Walker dismissed Mr Larkin’s appeal.1

[2] On 12 February 2019, Judge Harrison granted leave for Mr Larkin to appeal to this Court on the following question of law:2

Do sections 374 and 376 of the Accident Compensation Act 2001 confer any power on the respondent to compensate the applicant for constant personal attention/attendant care provided over the period 1 July 1993–31 March 2002?

Background

[3] During his birth in 1992, Mr Larkin suffered a significant and permanent brain injury caused by the entry of foetal blood into the maternal circulation (foetal-maternal haemorrhage) and consequent oxygen deprivation (hypoxia). The injury has manifested in cerebral palsy, quadriplegia and epilepsy. As a result, Mr Larkin requires full-time care.

[4] In 2005, an application was made to ACC on Mr Larkin’s behalf for cover for a treatment injury. On 2 March 2011, Judge Ongley held that Mr Larkin had suffered a treatment injury because the foetal-maternal haemorrhage was a result of a delay in the decision to deliver Mr Larkin by caesarean section.3 ACC began providing attendant care from 16 May 2011.

[5] On 19 October 2011, ACC agreed to pay back-dated compensation for attendant care from 1 April 2002 (the commencement date of the 2001 Act) until 15 May 2011, but declined to provide compensation for attendant care under the predecessor legislation. It is the 19 October decision that is now challenged on appeal.

[6] For completion, I record that a dispute over the number of hours of attendant care that Mr Larkin requires per week was resolved by Judge Mathers’ determination in 2014 that Mr Larkin is entitled to funding for 24-hour care.4

1 Larkin v Accident Compensation Corporation [2018] NZACC 177.
2 Larkin v Accident Compensation Corporation [2019]…

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: [2019] NZHC 3085
Decision Date: 26 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Larkin v Accident Compensation Corporation involved a dispute over the interpretation of transitional provisions of the Accident Compensation Act 2001 for the payment of attendant care. The appellant, Mr Larkin, sought compensation for the period between 1 July 1993 and 31 March 2002, but the respondent, ACC, denied the claim. The key legal issue was whether sections 374 and 376 of the 2001 Act conferred any power on ACC to compensate Mr Larkin for the attendant care provided during that period.

The court found that ACC had no power to compensate Mr Larkin for the period in question. The court held that the transitional provisions of the 2001 Act were clear and deliberate, distinguishing between those who were "receiving" compensation and those who were "entitled to receive" compensation. The court rejected the argument that the language of the provisions should be read in a way that would result in a lacuna in the law. The court also found that there was no drafting imperfection or legislative oversight that would justify judicial intervention.

In conclusion, the appeal was dismissed, and ACC was not required to compensate Mr Larkin for the period between 1 July 1993 and 31 March 2002. The court's decision emphasised the importance of adhering to the clear language of the statutory provisions and the need to avoid judicial legislation.

Orders