Te Ua v Secretary for War Pensions

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-000061 [2014] NZHC 1050

BETWEEN

WALTER HORTON TE UA Plaintiff

LYNETTE STANKOVICH Second Plaintiff

AND

SECRETARY FOR WAR PENSIONS First Defendant

ATTORNEY-GENERAL Second Defendant

Hearing:	6-7 April 2014
Counsel:	GDS Taylor and M Freeman for Plaintiffs A Williams and R Garden for Defendants
Judgment:	10 June 2014

JUDGMENT OF WHATA J

TABLE OF CONTENTS

Background  [6] A war veteran  [7] The claims and assessment process  [9] Father Te Ua’s claimed and approved disabilities  [10]

The claims and relief sought

Judicial review  [23]

Breach of statutory duty  [24]

Negligence  [27]

Statutory framework  [29]

Regulations  [59]

TE UA v SECRETARY FOR WAR PENSIONS [2014] NZHC 1050 [10 June 2014]

First review claim: Rejecting cover for previously accepted

conditions  [65]

Second review claim: Delay  [68] April 2007 claim   [71] Resolution  [78] February 2009 claim   [80] Resolution [81] Strict lodgement policy   [90]

Third review claim – Loss of records?  [94] Resolution  [101] “Evidence without foundation”?  [104] Assessment  [107] The proper approach  [114]

Fourth review claim – Withholding medical reports  [120] Fifth review claim – The unless notice  [129] Sixth review claim – Decision about hernia against evidence                 [135] Seventh review claim  [141] Assessment  [150]

Negligence and breach of statutory duty  [165] Negligence  [168] A novel duty of care  [171] Step 1 – Salient features of the claim  [172] Step 2 – Proximity / foreseeability  [174] Statutory policy  [178] Step 3 – fairness  [184] Breach of statutory duty  [189] The general damages claim  [196]

Crown Proceedings Act 1950  [201]

Analysis  [204]

Discretion  [205]

Outcome  [211]

Whether VANZ’s rejection of Father Te Ua’s claim for

disability allowance for a previously approved condition

was a reviewable and/or actionable error  [212]

Whether the delay associated with decisions on applications for disability allowances amounts to reviewable error and/or

actionable breach of statutory duty  [213]

Whether medical records have been lost, and if so, the consequences of this for the assessment of applications

for disability allowances  [214]

Whether withholding medical reports from a claimant prior to the decision of a Claims Panel is a reviewable breach

of natural justice  [217]

Whether a misdirected notice to Father Te Ua recording that he was not entitled to further periodic reviews of

his pension in relation to deafness (an approved condition)

is a reviewable breach of natural justice  [219]

Whether the decision to decline a disability allowance for

hernia was against the evidence  [220]

Whether Ms Stankovich is entitled to be compensated for lost earnings:

(i)       Without proof of loss from an employer; and

(ii)       While travelling and staying with Father Te Ua when he received treatment for approved conditions in

Palmerston North  [221]

Breach of statutory duty and negligence  [224] Further direction  [226] Costs  [227]

[1]    Father Te Ua1 joined the New Zealand Army in 1966.  He served three tours of duty in Vietnam.  He is entitled to a war disability pension and other allowances for medical conditions approved under the War Pensions Act 1954.

[2]     Lynette Stankovich is Father Te Ua’s…