Rameka v Accident Compensation Corporation - [2015] NZHC 730

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11274 [2015] NZHC 730

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an appeal on point of law pursuant to s 162

IN THE MATTER

of an application for special leave to appeal on point of law under s 162(3)

BETWEEN

WHAKARUA RAMEKA Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 11 March 2015

Counsel:

C Hollingsworth and J Miller for Appellant
P McBride for Respondent

Judgment:

16 April 2015

JUDGMENT OF BROWN J

[1] The appellant sustained significant spine and brain injuries as a result of a motor vehicle accident in November 2004 and is paraplegic. It is common ground that as a result of her injuries the appellant qualifies to receive “attendant care” provided by the respondent under s 81(1)(b) of the Accident Compensation Act 2001
(the Act).

RAMEKA v ACC [2015] NZHC 730 [16 April 2015]

[2] In relation to “attendant care”, cl 14 of pt 1 of sch 1 of the Act states:

14 Attendant care

In deciding whether to provide or contribute to the cost of attendant care, the Corporation must have regard to–

…

(d) the extent to which household family members or other family members might reasonably be expected to provide attendant care for the claimant after the claimant’s personal injury; and

(e) the extent to which attendant care is required to give household family members a break, from time to time, from providing attendant care for the claimant; and

(f) the need to avoid substantial disruption to the employment or other activities of household family members.

(emphasis added)

[3] Since her accident the appellant has lived with a friend, Mr Terry George, who provides the appellant’s on-going care as an employee of McIsaac Caregiving Agency Ltd.

[4] On 11 August 2011 the Corporation issued a decision providing for the extent of social rehabilitation assistance which would be provided to the appellant which included provision for 19.5 hours for attendant care level 1 and 1.5 hours for attendant care level 2 from 25 March 2012.

[5] The appellant applied for a review of the Corporation’s decision which was heard on 25 May 2012. The Corporation took the position that Mr George was a household family member. In accepting the Corporation’s contention and dismissing the review the reviewer stated:

There is no definition within the statutory scheme of what a “household family member” means. Having considered the evidence which is available, I reach the view that Mr George is more than simply a paid professional carer. I find his relationship with Ms Rameka is more akin to being a family member than a servant. I would have no difficulty in finding that what is considered to be a family member is not a matter easily capable of definition. New Zealand has a wide range of communities and social groups, and the make-up of those families differs greatly…

While I accept there is no sexual relationship, that is not required. It is manifest…

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: [2015] NZHC 730
Decision Date: 16 April 2015

CaseChat Overview and Summary

The appellant, Whakarua Rameka, was injured in a motor vehicle accident and qualified for attendant care under the Accident Compensation Act 2001. The legal issue was whether Mr Terry George, who provided care for Rameka, was a "household family member" for the purposes of determining the amount of care to be provided. The court found that Mr George was not a household family member because he was not related to Rameka by blood, marriage, or adoption, and thus was not a family member. The court considered the purpose of the Act, which is to provide rehabilitation to claimants, and found that the Act recognizes a moral obligation for the provision of personal assistance only to persons having a familial connection. Since Mr George did not have such a connection, he did not qualify as a household family member. The court concluded that the District Court made an error of law in determining otherwise, and the appeal was allowed. The parties were ordered to file memoranda as to costs.

Orders