Te Ua v Secretary for War Pensions
[2014] NZHC 1050
•10 June 2014
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 DefendantsJudgment:
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 wife and primary support person. In certain defined circumstances, support persons are entitled to compensation for assistance given to war veterans with approved conditions.
[3] Veteran Affairs New Zealand (“VANZ”) administers, among other things, war disablement pensions and related entitlements. Father Te Ua claims that VANZ failed to discharge its responsibilities to him in several ways, causing considerable distress to him and his family. Ms Stankovich seeks compensation for among other things, leave taken by her to assist Father Te Ua with his treatment for an approved disability.
[4] VANZ is headed by the Secretary for War Pensions and the Attorney-General is joined because Father Te Ua seeks damages in relation to several of his claims.
[5] The central issues before me are:
(a) 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;
(b)Whether the delay associated with decisions on applications for disability allowances amounts to reviewable error and/or actionable breach of statutory duty;
(c) Whether medical records have been lost, and if so, the consequences of this for the assessment of applications for disability allowances;
(d)Whether the decision to decline a disability allowance for hernia was against the evidence;
1 The plaintiff Walter Horton Te Ua has requested that I refer to him as Father Te Ua.
(e) Whether withholding medical reports from a claimant prior to the decision of a Claims Panel is a reviewable breach of natural justice;
(f) 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 and actionable.
(g)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.
Background
[6] Each of the alleged errors has a distinct factual background and I propose to address the salient facts under each claim. The following narrative is to provide the broader context to these specific claims.
A war veteran
[7] Father Te Ua enlisted with the New Zealand Army in 1966. He commenced his first tour of Vietnam in May 1967 and completed that tour in November of the same year. He volunteered to return to Vietnam and did so in February 1968, serving there in two stints until medically evacuated in November 1968. He was discharged from the Armed Forces in May 1969, but would later enlist as a Chaplain with the regular army.
[8] By dint of his service in the theatre of war, Father Te Ua is eligible for a war pension and a war disability pension for approved conditions under the War Pensions Act 1954.
The claims and assessment process
[9] The Secretary for War Pensions provided a helpful summary of the decision- making process under the War Pensions Act 1954 which I adopt. When a veteran makes a claim for a war disability pension, they are now assisted with their claim by a specifically assigned VANZ case manager (which was not the case at the time of Father Te Ua’s 2007 application). The decision on such applications is made by the War Pensions Claims Panel (Claims Panel) which is made up of a VANZ member and a representative of the Royal New Zealand Returned Services’ Association. If the decision of the Claims Panel is disputed, the claimant can seek to have the decision reviewed by a National Review Officer (NRO) who is a VANZ employee. The veteran can appeal the decision of the NRO to the War Pensions Appeal Board within a six month period. The letters advising veterans of decisions clearly point out their appeal rights. When a disability is accepted by the War Pensions Claim Panel, the date of entitlement for payment of the war disability pension and various grants and allowances is taken to be the date of the application.
Father Te Ua’s claimed and approved disabilities
[10] Father Te Ua was, as lead scout, exposed to a grenade explosion. This caused significant impairment to his hearing for which he initially received a 40% disability pension. That was subsequently reviewed and the pension was increased to 70% for deafness.
[11] In 2006, Father Te Ua applied for a disability allowance in relation to post- traumatic stress disorder. This was granted by the Claims Panel in September 2006. This resulted in a 45% permanent pension. This meant that, taken together, Father Te Ua had a pension entitlement at 115%, but the statutory maximum payment was
100% at that time.
[12] Father Te Ua also applied in April 2007 for a review of pension and medical entitlements to cover conditions including lupus, osteoarthritis, gout, heel spurs, Paget’s disease, thyroidectomy, digestive disease, throat/speech disorder, hypertension, fatigue, diarrhoea, reflux, tinea, and memory loss.
[13] The Claims Panel accepted the claims for hypertension, osteoarthritis and digestive disease, diarrhoea and reflux. The last three are broadly described as irritable bowel syndrome. The claims for Paget’s disease, gout, lupus, fatigue and thyroidectomy were deferred. The claim for gout was later accepted in January
2008, but the claims in relation to throat/speech disorder, Paget’s disease and thyroidectomy were declined. The claim for short term memory loss as a result of hypertension was also approved in January 2009.
[14] In February 2009, Father Te Ua applied for a review of his pension to include fatty liver, heel spurs, reflux, hypertensive cardiovascular disease, benign positional vertigo, back and neck pain, arthritis and lupus. The claim for lupus would be later withdrawn, as would the claim in relation to benign positional vertigo. The Claims Panel accepted the osteoarthritis of the back, right knee and hands to a total of 15% in October 2009. While still waiting for his existing claims to be resolved, Father Te Ua also applied for review of his pension to include hernia, diverticulitis and enlarged prostate on 11 November 2009.
[15] In December that year, the Claims Panel accepted the hypertensive heart disease and short-term memory loss to a total of 20%. But the Panel would later decline claims in relation to heel spurs, fatty liver, diverticulitis, arthritis, hernia and reflux in February 2010.
[16] Father Te Ua made further application in July 2010 to have his deafness reassessed and in August 2010 applied for review of the decision of the Panel of
9 February 2009. Before the review of the decision was complete, VANZ declined Father Te Ua’s application for a treatment exam by a specialist in laparoscopic reflux surgery. The reason given for this was that the reflux was not an accepted disability. However, on 2 December 2010, the Deputy Secretary for War Pensions overturned the decision of the Panel on the basis that the reflux had already been accepted in
2007.
[17] In March 2011, the NRO accepted the claims of fatty liver (5%), diverticulitis (10%) and arthritis (5%), overturning the Panel’s February 2009 decision but upholding the decision to decline heel spurs and hernia.
[18] At about the same time, Father Te Ua learned that he needed to travel to Auckland to obtain specialist management of pensionable disabilities and sought assistance from Ms Stankovich for the purposes of his travel and stay in Auckland. VANZ approved transport expenses for Ms Stankovich to accompany Father Te Ua, but rejected a request for compensation for lost wages unless Ms Stankovich’s employer confirmed that there was no paid leave that she could take and there was a net loss of wages.
[19] Concerns were then raised with the Ombudsman, later the Deputy Secretary, Prime Minister and the Honourable Judith Collins in relation to the administration of Father Te Ua’s claims. The Secretary nevertheless remained steadfast in relation to the claims for wages and other costs incurred by Ms Stankovich.
[20] Father Te Ua was diagnosed with prostate cancer in March 2012. His subsequent application for prostate cancer to be included as an accepted disability was accepted by the Claims Panel and his pension was increased to 195%, though the total payable is 100% plus 60% additional pension under s 23. Further endeavours to obtain assistance for Ms Stankovich to support Father Te Ua, including by travelling with him and staying with him at the venues of treatment were rejected.
The claims and relief sought
[21] The pleadings are in three parts. The first part seeks relief by way of judicial review of seven allegedly reviewable actions. The second part alleges breach of statutory duty alleging four reviewable actions (though the fourth action was not pursued at the hearing). The third part of the proceedings alleges negligence in relation to four alleged reviewable actions.
[22] The three parts relate to the same underlying facts but it is convenient to deal firstly with the claims by way of judicial review and then with the claims of actionable breach of statutory duty and of negligence.
Judicial review
[23] Father Te Ua alleges that the Secretary and/or the officers of VANZ made the following reviewable errors:
(a) The Claims Panel and then the NRO erroneously rejected cover for reflux, a condition that had been previously accepted by VANZ (first review claim);
(b) The decisions of the Claims Panel dated 17 December 2009 and 9
February 2010 were unlawful for the following reasons:
(i) The strict order of lodgement policy was unlawful;
(ii)An alleged corroboration policy was contrary to natural justice;
(iii) The delays were unreasonable. (second review claim)
(c) The Chief of the Defence Force and the Secretary failed to maintain the integrity of the records of veterans with the consequence that decisions made were based on incomplete files, were unreasonable and/or unlawful (third review claim);
(d)The Secretary breached natural justice in failing to disclose to Father Te Ua the medical records relied upon for the purposes of making a decision on a claim by him (fourth review claim);
(e) VANZ erroneously misaddressed an unless notice to Father Te Ua thereby depriving him of further reviews in respect of his hearing loss (fifth review claim).
(f) The decisions to refuse to accept Father Te Ua’s heel spurs2 and hernia were unlawful in that they were:
2 This part of the claim was withdrawn prior to hearing.
(i) Inconsistent with principle;
(ii)Based on an unlawful policy including a requirement for order of lodgement and a requirement for corroboration of information provided by a veteran (sixth review claim).
(g) The Secretary unreasonably refused to grant travel allowances to
Ms Stankovich (seventh review claim).
Breach of statutory duty
[24] The first breach of statutory duty relates to the first reviewable claim. Father Te Ua alleges that VANZ was under a duty to see what disabilities had in the past been accepted as attributable to Father Te Ua’s service and secondly that the Claims Panel and then the NRO purported to reduce Father Te Ua’s pension in breach of s 26.
[25] The second claim concerns the delay in making and notifying decisions. Father Te Ua claims that the delay in making the decision in relation to reflux and related conditions did not meet the statutory standard of as soon as practicable. He claims that the decisions were not notified “forthwith”.
[26] The third claim was that the failure to maintain the records of the veterans breached an implied statutory duty to keep proper records.
Negligence
[27] The third aspect of the pleadings relates to claims of negligence, that is, failure to take reasonable care to:
(a) Be properly informed of previous decisions;
(b) To maintain the integrity and completeness of a veteran’s file;
(c) To ascertain the correct address of a veteran for notification purposes;
and
(d) To make a reasonable decision in relation to Ms Stankovich’s claims
for allowances.
[28] Following the close of the hearing, Mr Taylor helpfully provided a Schedule of Relief by way of declaration. I do not repeat this Schedule here but simply observe that it has assisted me in formulating, where applicable, the appropriate relief.
Statutory framework
[29] The claims cannot be understood without a detailed examination of the War Pensions Act 1954 and the War Pensions Regulations 1956. The War Pensions Act is an act to consolidate and amend the law relating to war pensions and allowances. The Secretary for War Pensions is charged with the administration of this Act.3 The Secretary may either generally or particularly delegate any of the Secretary’s powers, functions and discretions to any official or employee of the Department. The Deputy Secretary may also exercise the powers, duties and functions of the Secretary, subject however to the control of the Secretary.4
[30] The Act establishes an Advisory Board with a number of functions including to approve guidelines for the determination and assessment of war pensions to be used by medical examiners and Claims Panels.
[31] The Act also establishes a War Pensions Appeals Board that is comprised of four members appointed by the Minister who are responsible for the administration of the Act. Two members of the Appeal Board must be medical practitioners and one of those members must be appointed as a representative of the members of the forces by nomination of the New Zealand Returned Services Association.5
[32] For present purposes, the genesis of disablement pensions can be found at s 19 which states:
3 War Pensions Act 1954, s 4.
4 Section 5.
5 Sections 8(2) and (3).
19 General provisions as to grounds for payment of pensions
(1) Subject to the provisions of this Act, pensions in respect of the disablement or death of any member of the forces (whether occurring before or after the commencement of this Act) shall be payable under this Part to the member and his dependants (in the case of his disablement) or to the dependants of the member (in the case of his death) in any of the following cases, namely:
(a) …
(b) in any case where the disablement or death of the member is attributable to his service in New Zealand or overseas:
(c) in any case where the condition that resulted in the disablement or death of the member was aggravated by his service in New Zealand or overseas:
…
[33] There are exceptions to the reach of s 19, including if the member was a deserter or where the relevant disablement was attributable in whole or in part to wilful misconduct during the period of service.
[34] Section 20 of the Act then provides that the rate of the pension payable shall not exceed the rate specified in Schedule 1. There is an exception to this in terms of disability specified in Schedule 9, but these are not relevant to the present case. Section 23, however, provides for additional pension in certain cases of severe disablement, for example, where the member of the forces is suffering from two or more serious disabilities.
[35] Section 14 sets out the procedure in respect of claims for pensions. Relevantly, s 14 states:
14 Claims for war pensions or allowances
…
(2) A claimant for a pension for death or disablement of a member of the forces allegedly caused by or attributable to or aggravated by service may be required by the Secretary, if it is appropriate to the circumstances of the case, to produce a medical report from the claimant’s or, as the case may be, the deceased member of the force’s own medical practitioner which sets out with particularity the nature of the condition from which the deceased member of the forces died, or which occasions the claimant’s disability.
(3) As soon as practicable after receiving a claim under this section, the
Secretary shall consider it and may either-
(a) grant a pension or allowance in accordance with the provisions of this Act; or
(b) decline the claim on the grounds that the claimant is not entitled to a pension or allowance under this Act.
(4) The claimant shall be forthwith advised of the decision to grant or decline the claim, and shall at the same time be supplied with a written explanation of the reason or reasons for the decision.
(5) If a claimant, whose right of appeal under section 16 against a decision made under subsection (3) of this section has not been exercised and has lapsed, satisfies the Secretary that, because of additional evidence becoming available or for any other reason, it is desirable in the interests of justice that the claim should be reconsidered, the Secretary shall accept from the claimant a fresh claim; and any such claim shall be dealt with in accordance with section 15E. (Emphasis added)
[36] As can be seen the italicised passages reveal the following:
(a) A medical report may be required to support a claim;
(b) The decision on the claim must be made as soon as is practicable; (c) The claimant must be advised of the decision forthwith;
(d)The Secretary may reconsider a claim because of additional evidence or other reasons if it is in the interests of justice to do so.
[37] Under s 15A the Secretary may delegate to a Claims Panel or a NRO appointed under s 15C, the Secretary’s powers, functions and discretions under s 14(2) to (4), (among other powers).
[38] The District Claims Panel is established by s 15 and consists of a person who is an official or employee of the Department and appointed by the Secretary or an official or employee of a department of the Public Service listed in Schedule 1 of the State Sector Act 1988. It must also be comprised of a person appointed by the Secretary on the nomination of the National Executive Committee of the New Zealand Returned Services’ Association.
[39] Consideration of the claims by the District Claims Panel is governed by s 15B. Section 15B specifies that every provision of this Act relating to claims for war pensions or allowances where relevant shall with necessary modifications apply to the consideration and determination of the claim. Section 15B then states:
15B Consideration of claims, etc, by district claims panel
(1) Where a claims panel is to consider any claim pursuant to a delegation under section 15A-
…
(b) the claims panel may require the claimant to undergo such medical examinations or assessments as may be reasonably necessary to enable the claims panel to consider the claim fairly:
(c) the claims panel may require the claimant to attend and give evidence before the panel in support of the claim, and may accept evidence in person from the claimant or any other person whom the claimant wishes to present in support of the claim:
(d) the claimant shall have the right to make written submissions to the claims panel in support of the claim.
…
[40] Every decision of the Claims Panel must be unanimous. If it is not unanimous, then the decision shall be forwarded to a NRO appointed under s 15C.
[41] Furthermore, any claimant who is dissatisfied with a decision of the Claims Panel may, within six months after being notified of the decision, apply to the NRO for the decision to be reviewed.
[42] On reviewing the decision the NRO may confirm the decision, amend or reverse it, or make such other decision as is appropriate in the circumstances of the case.6
[43] The NRO is subject to the same provisions applicable to the Claims Panel as set out in s 15B(1)(a)-(d).7 Section 15D(6) also contemplates that the NRO may
6 Section 15D(3).
require a claimant to attend and give evidence in support of a claim and if he or she does so, the Secretary shall pay for the actual and reasonable travelling and accommodation expenses incurred by the claimant or a representative of the claimant.
[44] A NRO has the additional power, together with the Secretary, to determine whether a fresh application under s 14(5) or s 16(4) should be accepted for consideration.8
[45] An applicant may appeal to the War Pensions Appeal Board from a decision of a NRO or of the Secretary. More specifically, s 16 provides that there may be an appeal from a decision insofar as it consists of:
(a) The rejection of any claim for a pension in respect of the disablement or death of a member of the forces on the ground that disablement or death was not attributable to his service as a member of the forces or the condition that resulted in his disablement or death was not aggravated by that service; or
(b) The assessment of a pension granted to any member of the forces in so far as the assessment is based on medical grounds; or
(c) The assessment of any additional pension for severe disablement under s 23.
[46] The War Pensions Appeal Board may then confirm the decision or may in accordance with the provisions of the Act grant or refuse to grant a pension or increase or reduce the rate of any pension or terminate any pension.
[47] The decision of the Appeal Board is final and conclusive provided that:9
… if at any time a claimant whose appeal has been determined satisfies the Secretary that by reason of additional evidence becoming available or for any reason whatsoever it is desirable in the interests of justice that his claim should be reconsidered, the Secretary shall accept from him a fresh claim and any claim shall be dealt with in all respects as if it were an original application for a pension.
7 Section 15D(5).
8 Section 15E.
9 Section 16(4).
[48] The Appeal Board is precluded from considering any appeal against a decision made under s 15D until the NRO has completed a review of the decision.10
[49] There is then a further limited right of appeal to the Social Security Appeal Authority. I am advised by Mr Taylor that the scope of that section is not relevant to the claims in the present case.
[50] Detailed provisions are included dealing with the assessment of information in support of claims. First, s 17 provides that where a member of the forces was medically graded as fit for service with the forces then the medical grading shall, subject to defined exceptions, be accepted as conclusive proof of the absolute
physical and mental fitness of the member at the time of the grading.11
[51] This presumption does not operate in any case where it is proved that the member failed to reveal to the medical examiners any material facts in relation to his physical or mental health or history or where it is proved, in short, that a member falsely stated his degree of medical fitness.
[52] Second, and in any event, s 17(3) provides that in any case:
17 Presumption that disablement or death attributable to service
…
(3) … the claimant shall be entitled to produce to the Secretary or an Appeal Board, as the case may be, any evidence (whether strictly legal evidence or not) to show that the condition that resulted in the disablement or death of the member was possibly or probably attributable to or aggravated by his service with the forces in connection with any war or emergency, and if any reasonable evidence to that effect is produced there shall thereby be established a presumption that that condition was in fact attributable to or aggravated by the service of the member, and that presumption may be rebutted only by evidence that satisfies the Secretary or Appeal Board that the condition was not so attributable or aggravated but was due entirely to other causes. (emphasis added)
…
10 Section 16(5).
11 This presumption does not apply if the medical grading was altered by a competent authority within two months after he had been attached to the forces for service but before he had b een subject to any conditions that have in fact prejudicially affected his physical or mental fitness and the member has been officially informed of the alteration of his grading within three months after he has been so attached to the forces for service therein.
[53] Third, s 18 overlays s 17 by stating that the Secretary or Appeal Board is not bound by rules of evidence, but rather must determine all claims in accordance with their merits. More specifically under s 18, the Secretary and the Board:
(1) … shall decide in accordance with substantial justice and the merits of the case, and shall not be bound by any technicalities or legal forms or rules of evidence.
(2) In the application of the general rule formulated in subsection (1) the following particular rules shall apply-
(a) in no case shall there be on the claimant any onus of proving that the disablement or death on which the claim is based was in fact attributable to the service of the member or that the condition that resulted in the disablement or death of the member was aggravated by his service:
(b) the claimant shall be given the full benefit of the presumptions in his favour provided for in section 17:
(c) the Secretary or an Appeal Board, as the case may be, shall be entitled to draw and shall draw from all the circumstances of the case, from evidence furnished, and from medical opinions submitted to the Secretary or Appeal Board, all reasonable inferences in favour of the claimant, and the claimant shall, in every case, be given the benefit of any doubt as to the existence of any fact, matter, cause, or circumstance that would be favourable to him.
[54] In summary, the combined effect of ss 17 and 18 is that on the production of any reasonable evidence that disablement was possibly attributable to or aggravated by service with the forces, then the Secretary or the Appeal Board must decide in favour of the claimant unless the Secretary or Board are satisfied that the condition was due entirely to other causes. I elaborate on their effect below at [114].
[55] Section 26 then provides for review of pensions:
26 Review of pensions
(1) Except in any case to which subsection (2) of section 25 applies, a permanent pension granted under this Part to any member of the forces shall not thereafter be reduced unless it is conclusively established, beyond any possibility of doubt, that the disablement in respect of which it was granted has in fact proved to be temporary, either to the full extent thereof or in 1 or more of its essential characteristics.
(2) Subject to subsection (1), any pension granted under this Part to any member of the forces may from time to time and at any time be reviewed by the Secretary. On the review of any pension in accordance with this subsection the Secretary, having regard to any change that may have taken place in relation to his disablement in the physical or mental condition of the member since the pension was granted or was last reviewed, as the case may be, may terminate the pension or, within the limits prescribed by this Act, may increase or reduce the rate thereof.
[56] The Secretary may also on the advice of not less than two medical practitioners reduce a member’s pension if that member without good and sufficient cause refuses or wilfully fails to undergo medical treatment.12
[57] There is then provision for the services of attendants in certain cases. More specifically, s 29 provides that the Secretary may at the Secretary’s discretion grant an allowance in respect of the services of an attendant at a rate not exceeding the appropriate rate specified in Schedule 2. The Act also provides for pensions for surviving spouses or surviving partners of deceased members and pensions for children of disabled and deceased members. These provisions are not relevant to the present case except to the extent that provision for family members is contemplated by the Act in a general sense.
[58] A generous power to make regulations is conferred by s 96. I refer to the most relevant aspects of this power below at [155] when dealing with the seventh review claim. For present purposes it is apt to note their express power to make regulations to provide for:
(a) Medical treatment;13
(b)Payment of travel expenses of members undergoing medical treatment;14
12 Section 27.
13 Section 96(2)(c).
14 Section 96(2)(f).
(c) Payment of compensation for wages lost as a result of such treatment;15
(d) Travel allowances in respect of an escort.16
Regulations
[59] Relevant to the second review claim, regs 12 and 13 provide that decisions
must be notified to the claimant “forthwith”.
[60] Part 4 of the regulations address appeals to the Appeal Board in a detailed way, further emphasising the underlying scheme of the Act to afford a fair opportunity for claimants to pursue their claims.17
[61] Regulations 34, 35, 40 and 42 set the frame for the seventh review claim. Regulations 34 and 35 provide for medical treatment for any person who is in receipt of a pension in respect of a disablement. Regulation 40 provides for travelling allowances for veterans. It states :
40 Warrant or refund for fares for medical treatment or examination
(1) Any person who is obliged to travel for the purpose of undergoing medical or surgical treatment in accordance with these regulations …. may be provided with a warrant for his or her fares or may be granted a refund of the cost of transit reasonably incurred. Where practicable, public transport facilities should be utilised.
(2) In the discretion of the Secretary, warrants may also be issued for meals and accommodation during the period of necessary absence or a refund may be allowed of actual and reasonable out of pocket expenses for the period of necessary absence.
(3) The Secretary may authorise payment of a reasonable amount by way of compensation for loss of earnings where any person is required to report for medical examination or treatment, or for attendance before an Appeal Board or a claims panel. Where any claim under this subclause relates to wages, it must be accompanied by a certificate from the claimant's employer.
15 Section 96(2)(f).
16 Section 96(2)(g).
17 Refer in particular War Pensions Regulations 1956, regs 26, 28, 29 and 30.
(4) A claim for any item of out of pocket expenses in excess of $1 (other than train fares) must be supported by a receipt furnished by the person to whom payment was made.
…
[62] This allowance is also supplemented by a travel allowance for hospital patients to visit home. The patient must have been receiving treatment for not less than one month and thereafter one free railway ticket may be granted every three months.18
Alternatively, similar provision is made for next of kin if the veteran is unable to travel.
[63] Regulation 42 then provides for travel allowances for escorts of a service patient as follows:
42 Allowances for travel escort of hospital patient
In the case of a service patient who is certified by a medical practitioner or by a senior medical officer of a hospital to be unable or unfit to travel alone, the Secretary may authorise him or her to be accompanied by an escort who may be paid the cost of transit incurred, actual and reasonable out of pocket expenses for board and lodging, and compensation for loss of wages, at rates not exceeding the rates applicable for the service patient.
[64] I also observe that reg 44 provides a combined travelling personal items allowance for persons with total disablement and their escort of $25 per week.
First review claim: Rejecting cover for previously accepted conditions
[65] Father Te Ua claims (in short) that VANZ:
(a) Erroneously refused to pay for a colonoscopy and a gastroscopy in
December 2009; and
(b) Wrongly declined to accept the disability of reflux on 9 February
2010.
[66] The undisputed premise of both limbs of this claim is that Father Te Ua was in fact entitled to assistance for both the procedures and the reflux, having previously
18 Regulation 41.
been approved in 2007 for cover in relation to post-infective irritable bowel syndrome. During the hearing before me, VANZ accepted it should reimburse Father Te Ua in relation to his expenditure on the colonoscopy and the gastroscopy. That deals with that aspect of the claim.
[67] As the Secretary reversed the decision to decline to accept the reflux disability, no further review remedy is needed from me. I deal with the claim for breach of statutory duty and negligence below at [165]-[195].
Second review claim: Delay
[68] Father Te Ua claims that VANZ failed to discharge its statutory obligation to make decisions “as soon as practicable after they are lodged”, referring to s 14(3) of the Act. Two applications are highlighted for review. The first application was made on 10 April 2007 in relation to 11 conditions:
Lupus, osteoarthritis (including heel spurs and back pain), gout, Paget’s disease, thyroidectomy, digestive disease, throat/speech disorder, hypertension/fatigue, diarrhoea (including reflux), tinea and short term memory loss.
[69] The second application on 11 February 2009 concerned eight conditions:
Reflux, fatty liver, hypertensive cardiovascular disease, benign positional vertigo, heel spurs, lower back and neck pain, osteoarthritis and lupus.
[70] I propose to deal with each of the applications in turn.
April 2007 claim
[71] Helpfully, a chronology has been produced by Mr Taylor dealing with both claims and is largely though not completely supported by the affidavit evidence of Mr Ottaway for VANZ.
[72] Father Te Ua’s April 2007 applications were followed by a request for specialist exams on 23 April 2007. It appears that Father Te Ua attended these appointments on 19 July 2007 with the majority of the reports received by the end of August. The Claims Panel then accepted the claims for hypertension, osteoarthritis,
and digestive disease, diarrhoea and reflux on 20 September 2007. The claims for Pagets disease, gout, lupus, fatigue and thyroidectomy were deferred pending the receipt of specialist reports.
[73] VANZ advised Father Te Ua by letter dated 27 September 2007 that the hypertension, osteoarthritis and digestive disease, diarrhoea and reflux conditions (redefined as irritable bowel syndrome) had been accepted.
[74] The Claims Panel then accepted the claims for gout on 16 January 2008 but declined the claims for throat/speech disorder, Pagets disease, and thyroidectomy. The claim for memory loss was further deferred, as the requisite specialist report had not been received. A report was ultimately received on 18 November 2008. The Claims Panel then accepted the claim for short term memory losses as a result of hypertension on 16 January 2009.
[75] Mr Taylor submits19 that the common law test in relation to delay is whether it has so changed things that a decision cannot stand, or an extreme delay. Mr Taylor accepts that the delays do not appear to have changed the circumstances such that the decisions cannot stand, but they do qualify as “extreme”. He says that they were well beyond the statutory requirement of “as soon as practicable” and the delays were not accounted for. Mr Taylor also submits that VANZ has adopted a “strict order of time policy” which is not lawful. Overall, Mr Taylor also submits that the delays were essentially unreasonable.
[76] The Secretary, Mr Ottaway, responds that the time taken was not unreasonable given the number of applications. It is noted that the applications were made in April 2007, with medical reports received in August 2007, then a number of decisions made in September. The remaining decisions were then affected by the delay in obtaining requisite reports. He nevertheless accepts that the approach taken was not “best practice”, but since then there have been changes in procedures,
including assignment of case managers.
19 Citing GDS Taylor Judicial Review: A New Zealand Perspective (3rd ed, LexisNexis NZ, Wellington, 2014) at [15.78]-[15.79].
[77] He also refutes the suggestion that there is a strict “order in time policy”. Rather, he says that generally applications go to the Panel when the file is ready and medical reports are received. He also notes that VANZ accords urgency depending on a condition, for example, when Mr Te Ua was diagnosed with cancer.
Resolution
[78] Applications must be determined “as soon as practicable” after they are lodged, and decisions notified “forthwith”. But “as soon as practicable” affords the decision-makers a degree of flexibility as to the management and timing of responses to applications. Father Te Ua’s applications in 2007 were both numerous and complex. VANZ sought specialist opinions for the disabilities within a short timeframe (by 23 April 2007). There was some delay then until Father Te Ua attended the specialists’ appointments, and a decision was made in relation to three of the conditions by 20 September 2007, with the remaining matters deferred pending receipt of other reports. There was however a considerable delay until the final decision was made in relation to five of the conditions. Indeed, as noted in the chronology, the decisions are not made until January 2008 and 2009. No suitable explanation has been given for this delay. These matters should not have been allowed to linger for such a lengthy period. Mr Ottaway’s explanation that it was not best practice confirms rather than rebuts the complaint made by Father Te Ua as to delay.
[79] In light of the foregoing, I am prepared to declare that the delay did not meet the statutory timeframe in relation to the matters finally decided on 16 January 2008 and on 16 January 2009.
February 2009 claim
[80] Mr Taylor has also helpfully provided a chronology of the key dates in relation to the February 2009 claim which also broadly accords with the chronology provided by Mr Ottaway. Given the number of applications and the complexity of the assessment process, I have produced the following table, based on the parties’ chronologies, recording key dates of application, medical reports, and notification.
| CONDITION | APPLICATION | REPORT | REFERRAL TO PANEL | DECISION | NOTIFICATION |
| Reflux & fatty infiltration | 11 February 2009 | 18 June 2009 (Note date stamped by VANZ 4 December 2009) | 22 January 2010 | 9 February 2010 (Note: Panel advised Father Te Ua that it was awaiting reports on 28 October) | 26 February 2010 |
| Hypertensive cardiovascular disease | 11 February 2009 | 21/22 October 2009 | 5 November | 10 December 2009 | 11 January 2010 |
| Osteoarthritis, lower back and neck pain, heel spurs | 11 February 2009 | 22 July 2009 | 13 August 2009 22 January 2010 | 28 October 2009 (Lower back, neck, osteo) 9 February 2010 (heel spurs) | 28 October 2009 26 February 2010 |
| Hernia, diverticulitis and enlarged prostate (withdrawn 22 Dec 2009) | 11 November 2009 | 22 January 2010 | 9 February 2010 | 26 February 2010 |
Resolution
[81] I accept Mr Ottaway’s evidence that the assessments could not be practicably completed until all relevant medical reports were obtained. The period between the receipt of the relevant medical reports and the decisions of the Claims Panel was just under eight months for the reflux and fatty infiltration claims; one month 18 days for the hypertensive cardiovascular disease; three months six days for the osteoarthritis, lower back and neck pain; and for the heel spurs claim seven months 25 days. In relation to the hernia and diverticulitis claims, the decision was made within two months 29 days of the application being lodged.
[82] Mr Ottaway does not offer an explanation for the delays, though he says that:20
… there appears to be an unduly long period of time between the application
for review and medical information being obtained.
20 Mr Ottaway’s affidavit at [65].
[83] He also observes that:21
Reverend Te Ua presents with a complex medical situation and it takes time to deal with each individual claim.
[84] Ms Williams for the Secretary does not contend that the decisions were delivered as soon as practicable. She maintained, nevertheless, that the delays were not unreasonable given the huge demands on VANZ.
[85] I accept that delays of three or so months might fairly be considered “as soon as practicable,” given the number and complexity of the claims. I note that the average time for determination of a claim for an application is now around 3-6 weeks once all current medical evidence is obtained. But an eight month delay from receipt of medical assessments does not comply with the statutory standard. Significantly the fault cannot be levelled at the Claims Panel making the decision. Indeed, as the above table also demonstrates, the Panel made the decisions on the claims with commendable efficiency.
[86] I note for completeness that the medical report relating to reflux and fatty infiltration was date stamped by VANZ 4 December 2009. That might explain some of the delay. But it does not explain the failure by VANZ to take steps to check on progress. Had it done so before 28 October 2009 it would have discovered that a report had in fact been produced on the relevant conditions as early as 18 June 2009.
[87] Accordingly, I am prepared to declare that the delay associated with the decision on the application for reflux and fatty infiltration did not comply with s 14(3). It was not made as soon as practicable after the claim was received. I consider however that the delay associated with the other conditions is partly attributable to matters outside the reasonable control of VANZ (for example the timing of any relevant investigations and medical reports) and that the delay between those reports and the final decisions is not excessive.
[88] As to the delay in notifying Father Te Ua, the requirement is to notify
“forthwith”. I am satisfied that the 2008 decision was notified within the statutory
21 At [66].
timeframe. There is a letter dated 18 January 2008 (two days after the decision) recording the outcome of the application. The plaintiffs say they did not receive the letter. But for the purpose of assessing compliance, with the requirement to notify forthwith, I am satisfied by the production of a letter, correctly addressed, to Father Te Ua. However, delays in notification for decisions about hypertensive cardiovascular disease (one month), reflux, heel spurs, hernia, diverticulitis and enlarged prostate (17 days) do not meet the statutory standard.
[89] I address the significance of the delay below when dealing with relief.
Strict lodgement policy
[90] A related concern raised by Father Te Ua is a so called strict lodgement policy. Mr Taylor submits that a strict order of procedural application is evidenced by three letters from Mr Ottaway and in one of those letters it is recorded:
The files are being dealt with in the order they are received and we are taking all steps to complete the review of the information provided as quickly as possible.
[91] Mr Taylor submits that this policy admits no exception and is unlawful.22
[92] Ms Williams responds that as the Secretary explains, applications can be processed with priority by VANZ particularly when these concern a terminal illness as set out in the Case Management Manual. She observed that this occurred with Father Te Ua’s application in respect of his terminal prostate cancer.
[93] While the passages of the letter cited by Mr Taylor in correspondence from VANZ suggests an immutable policy, the evidence is in fact to the contrary. I think it is more accurate to describe it as an administrative practice rather than a fixed policy. I do not consider that the practice is unreasonable in an administrative law sense,
given that there are exceptions, for example, in cases of terminal illness.
22 Citing British Oxygen v Co Ltd v Board of Trade [1971] AC 610 (HL).
Third review claim - Loss of records?
[94] Father Te Ua claims that the records of veterans were purged. He refers to the fact that the front file cover of his NZDF was stamped “purged”. This claim is supported by the affidavit evidence of Mr John Mountain, Patrick John Duggan, Wayne Anthony Chester and Warren Ross Ayre.23 Mr Mountain was a Medical Corpsman from 1965 to 1987 and a Commissioned Staff Officer. He also served in Vietnam. He says he saw the transfer of written clinical treatment notes from
original files into new clinical sheets. He says the original A5 treatment cards were disposed of. He then says that the new clinical sheets did not contain a full chronological history of medical treatments, noting:
I knew this to be a fact as some of the old A5 treatment cards had contained notes that I had made during that current and earlier postings to other Medical Units, where I had made notes on old cards when that particular soldier had reported for treatment.
[95] Mr Mountain made a complaint in 1992 that was rejected but notes that an apology was made by General Mateparae in his tribute speech of 2008. Mr Duggan served between 1962 and 1987, achieving the rank of Sergeant Major. He obtained a copy of his file in 2006 and observed that there was no mention at all of his being admitted to hospital in Nui Dat with a virus of unknown origin.
[96] Mr Ayre served in the New Zealand Navy as a leading seaman from 1962 to
1971. He served in Malaysia and Indonesia. Mr Ayre's records appeared to be incomplete. Mr Chester served from 1967 to 1970. He also served in Vietnam and Malaysia. Mr Chester's records could not be found at all.24
[97] John Alexander Dennistoun-Wood, a war veteran who achieved the rank of Brigadier, responded for the Secretary. He described the “purging” of files in this way:
5.When an officer or soldier was discharged from the Army all his/her personal files were centralized at the Base Records (now NZDF Personnel Archives) for retention and storage. There they were examined and processed by clerks who removed and destroyed any
23 Father Te Ua also recalls an event that would have been entered into the records but not present, namely heat stroke / dehydration.
24 Although it transpires that immediately before the hearing his records were located
documents that were duplicated in two or more of the series of personal files; this was known as purging and the fact that a file had been purged was noted on its cover. To the uninitiated the word “purged” may seem to have a sinister implication. However, if the purging has been done properly a complete record of a person’s service will be held across all three of four of his/her personal files.
[98] He states that clerks removed and destroyed duplicates from files. He has also examined Father Te Ua’s file. While he could not say that nothing was missing, he observed that the range of subject matter on the file is what he would have expected to see. There is then the evidence of Nigel Peter Lucie-Smith, Manager of Resources Law with the New Zealand Defence Force (NZDF). He referred to a copy of Father Te Ua’s medical file as at 13 September 1990. This material pre-dates the date stamp of 24 August 1998 recording the file as “purged”. He says every document recorded as present at that time is still on the file.
[99] Mr Taylor contends that Mr Mountain’s personal knowledge of the purging process is to be preferred over the largely speculative evidence given on behalf of the Secretary. He also noted that the then Lieutenant General Mateparae acknowledges that the NZDF had let down the veterans on the integrity and completeness of their files. The corollary of all of this is said to be that the files are incomplete and that any decisions based on the files must be flawed on what he describes as an
innominate ground25 or failure to consider relevant factors, or mistake of fact. He
also maintains that there is uncontradicted evidence that VANZ has been aware of there being missing information. Indeed he says Ms Campbell was told about the purge, and has not rejected this account in her evidence. The remedy sought is a declaration. There is also a claim for negligence and breach of statutory duty (which I address below).
[100] The Secretary denies that the files of the veterans are incomplete.
Resolution
[101] I am unable to resolve whether veterans’ files were inappropriately purged of
relevant information. I accept Mr Mountain observed the culling of files. But his
25 See Taylor, above n 19, at 422-423: The innominate ground is where the Court decides something has gone wrong but cannot put the defect or defects into an existing ground and this is where the innominate ground may be relied upon.
evidence is simply too generalised for me to be able to find, on the balance of probabilities, that materially relevant records were removed for the purposes of applications made by Father Te Ua. Conversely, in the absence of cross- examination, I am not prepared to dismiss as untruthful Mr Dennistoun-Wood’s explanation that only duplicates were purged. Furthermore, again in the absence of cross-examination, I am not prepared to dismiss as unreliable evidence that a cross check of Father Te Ua’s records was undertaken by reference to the contents of his files prior to the purge and that no material absences were noted. For completeness the fact that Ms Campbell has not filed evidence denying that she was told about the purging of the files does not assist me much, even with a liberal application of the
rule in Jones v Dunkel.26 The inference I can draw from this is that VANZ was told
about the purging and did nothing about it. But it says nothing about what was in fact purged. I am therefore unable to provide the remedy of declaration on the evidence as it currently sits.
[102] I acknowledge the difficulties confronted by Father Te Ua in proving the absence of records. I am also mindful of the record of the apology (not challenged) given by Lieutenant General Mateparae. Mr Mountain’s evidence together with that apology raises a legitimate concern. But there are limits to the process of judicial review particularly in a context where, as is ordinarily the case, conflicting evidence was not tested by way of cross-examination.
[103] It is unnecessary for me to address the argument for the Secretary that there has been undue delay in pleading this claim. Apparently Father Te Ua received his medical record in 1990. It is said that he could have known about the allegedly missing documents then. I simply observe that the materiality of the absent documents (if any) would unlikely to have been apparent until such time as Father Te Ua became aware of the Secretary’s policy about the weight to be afforded to the evidence of veterans without corroborating information. This suggests to me that the delay point lacks substantive merit. But as noted I have formed no final view about
it.
26 Jones v Dunkel (1959) 101 CLR 298 (HCA).
“Evidence without foundation”?
[104] A related substantive issue is the extent to which statements of veterans may be relied upon by the Claims Panel in the absence of corroborative information. The approach taken by VANZ to this issue is (apparently) recorded in a letter from the Secretary to Ms Stankovich dated 27 January 2011 including the following
observation:27
If there is no relevant information on the Service File, and the disability is not consistent with what is known about the role undertaken by the claimant when they were in service and the environment they served in, then any statements that are provided with the claim are considered.
These statements on their own are considered evidence without foundation. This does not in its own right constitute evidence; it only indicates that there is an absence of evidence about the cause of a disability. The War Pensions Claims Panel seek to corroborate these statements by considering whether they are consistent with the other evidence they have available.
[105] Mr Taylor submits that this approach is tantamount to saying that regardless of credibility, a veteran’s account is not evidence. He submits that this is erroneous because it is:
(a) Arbitrary;
(b)Fails to take into account relevant factors such as things any decision maker considers in deciding whether or not and how much weight to give the evidence;
(c) Creates an overriding policy that includes no room for exceptions;
(d)Is irrational because the veterans’ own experience of one symptom coinciding with another is by definition valid and relevant (that is what a doctor uses to some extent in making diagnoses).
[106] The Secretary does not elaborate on the meaning of the above passage. But he observes in his evidence that:28
27 Letter from Mr Ottaway to Ms Stankovich dated 27 January 2011.
28 Mr Ottaway’s affidavit at [63].
The Panel needs to receive sufficient information to establish that the veteran is currently suffering from the disability they are claiming for, and to be able to make a decision about the level of impact that disability is having on the veteran, and whether that disability is attributable to his or her eligible service. If medical evidence about whether a veteran is suffering from a disability is equivocal, the WCPC will take a benevolent approach and rely on the evidence from the veteran. An example of the benevolent approach is the Panel’s approval of Rev Te Ua’s application for gout. …
Assessment
[107] The observation recorded at [104] is ambiguous. Indeed, Ms Williams accepted that key explanatory words or phrases appear to be missing. For example, it is not clear whether the letter is referring to veterans’ statements when it states that:
These statements … are without foundation.
[108] It is equally not clear what is meant by “without foundation”. Does it mean baseless? Or is it simply saying that there is no corroborative information? I am also unclear as to the import of the second sentence:
This does not in its own right constitute evidence; it only indicates that there is an absence of evidence about the cause of a disability.
[109] This passage could conceivably mean (at least) three things. It could be saying that the statements do not constitute evidence. Or it could be saying that the fact that the statements are “without foundation” does not constitute evidence. And/or it could simply be saying “that there is an absence of evidence about the cause of a disability”. But that then implies that the veteran’s statement is not evidence (which is Mr Taylor’s main criticism).
[110] Further complicating matters, the passage concludes by stating that the Claims
Panel will:
seek to corroborate these statements by considering whether they are consistent with the other evidence they have available.
[111] But that will be difficult given the passage is predicated on the assumption that:
…there is no relevant information on the Service File, and the disability is not consistent with what is known about the role undertaken by the claimant when they were in service and the environment they served in…
[112] I am not greatly assisted by the Secretary’s evidence on this, though it suggests that the underlying policy is to seek sufficient information about a claim and where there is competing medical information, to favour the applicant’s view.
[113] In any event, the best I can do is interpret the passages to mean that the present policy of the Secretary is to require corroborating information where the statements of a veteran are not supported by information on the service file and the disability is not consistent with what is known about the role undertaken by the veteran. If so, then it is flawed, for the following reasons.
The proper approach
[114] Sections 17 and 18 mandate a benevolent approach to claims by veterans. Those sections are recorded at [52]-[53]. In summary, strict rules of evidence are jettisoned in favour of a merits based approach.29 There is no onus on a veteran to prove that the condition was attributable to service.30 Rather, for the purpose of the merits assessment three presumptions are to be applied. First, a veteran is presumed
to have been as fit for service unless it is proven that the claimed disablement was not revealed to medical examiners.31 Second, even where this presumption does not apply, the disablement will be presumed to be attributable to service if there is
‘reasonable evidence’ produced to the effect that it is possibly (or probably) attributable to or aggravated by his service with the forces.32 And this second presumption can only be rebutted by evidence that “satisfies” the Secretary or Board that the disablement was due entirely to other causes.33 Notably, “satisfies” is a directional verb requiring that there must be sufficient and/or adequate information placed before the decision maker before he or she or it can properly reject the
veteran’s claim. 34 The Secretary and the Board are then also mandated to draw all
29 War Pensions Act 1954, s 18(1).
30 Section 18(2)(a).
31 Section 17(1).
32 Section 17(3).
33 Section 17(3).
reasonable inferences in favour of the claimant from all available information.35
Third, a claimant must be given the benefit of the doubt as to the existence of any fact, matter, cause, or circumstance that would be favourable to him.36
[115] I also consider that the definition of reasonable evidence must be given an interpretation that is consistent with the benevolent approach of the scheme as a whole. Conversely, a higher threshold of reasonableness could defeat the scheme’s merits based approach and interlocking statutory presumptions. It seems to me therefore that reasonable evidence simply means information that is relevant, credible and reliable information.37
[116] The assessment of relevance, credibility and reliability will naturally depend on the context, including available information about Father Te Ua’s service and medical history. But the test of reasonableness is not whether the statement is corroborated by other information. Rather, in assessing the reasonableness of the evidence the Secretary, Claims Panel and NRO are also required to give the benefit of doubt to the applicant.
[117] Returning then to the underlying complaint, the Secretary (or any delegated authority) erred if he proceeded on the basis that Father Te Ua’s statement in support of his claim was, in the absence of corroborating information, unsubstantiated. If the veteran’s statement was relevant, credible and reliable, then the claim had to be accepted by the Secretary unless he was satisfied that the disablement was due to entirely other causes.
[118] The Secretary also refers to the need for “sufficient” information. But that standard begs the question of what is meant by sufficient in this context. Given the three presumptions envisaged in ss 17 and 18, a veteran need only provide some relevant, credible and reliable information that presents a plausible basis for the
alleged condition and then the possibility that the condition is attributable to service.
34 Refer Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] 2 NZLR
597.
35 War Pensions Act 1954, s 18(2)(c).
36 Section 18(2)(c).
37 This aligns with the view expressed by the War Pensions Appeal Board in Jenning v Secretary for War Pensions (28 October 2004) War Pensions Appeal Board, Auckland, namely that it must have some probative value.
This might only be the statement of the veteran as to his or her service, the nature of his or her symptoms, and a combined medical opinion identifying the relevant condition and that the condition is possibly attributable to service. The Secretary must then accept the claim unless he is satisfied that there is another explanation for the condition.
[119] The practical application of this process is set out below when dealing with the fifth claim. I address the claims to breach of statutory duty and negligence under this heading below.
Fourth review claim - Withholding medical reports
[120] Father Te Ua complains that a decision by the Claims Panel in relation to his applications in 200938 was made based on medical reports that were not provided to him in advance of the decision having been made. Mr Taylor claims that that is a breach of natural justice that is amenable to review.39 The application of the principle of natural justice will depend on the context, including the statutory frame. As Mr Taylor put it, the principle of natural justice, audi altereram partem, is variable.40
[121] In this case the statutory frame specifically contemplates at s 15B(1)(d):
(d) the claimant shall have the right to make written submissions to the claims panel in support of the claim.
[122] This right is prefaced by the power of the claims panel to require medical examination “to enable the claims panel to consider the claim fairly”41 and to require a claimant to attend and give evidence.42
[123] I accept that these provisions must also be seen in light of s 15D which provides for review of decisions by a NRO with a further right of appeal to the War
Pensions Appeal Board. Furthermore, while the decision of the Appeal Board may
38 For recognition of diverticulitis, fatty liver, heel spurs, hernia, enlarged prostate, and reflux.
39 Citing from Secretary for Justice v Simes [2012] NZAR 1045 (CA).
40 Refer Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132.
41 War Pensions Act 1954, s 15B(1)(b).
42 Section 15B(1)(c).
be final and conclusive, the Secretary also has an additional discretion, by reason of additional evidence becoming available or for any reason it is desired by the interests of justice, to reconsider the claim.43 This scheme therefore contemplates multiple opportunities to correct error.
[124] That said, the first step in the scheme of the Act contemplates a right to make submissions, presumably because that assists the decision making process. Significantly, the medical examinations are linked to the objective of enabling the Claims Panel to consider the claims fairly. That purpose could be undermined if claimants could not then sensibly comment on the medical evidence provided to the Claims Panel. There may be, for example, factual errors contained within a medical assessment which ought to be brought to the attention of the Panel. It appears from the evidence that the rationale for excluding or not providing the medical reports was that the Act did not contemplate a forum for medical disputes or debates. That might be so, but the significance of the claimant’s submission must surely be to inform the Panel of any relevant matter, including any matter asserted in a medical report, that might result in a better informed and more robust decision. Nor is there any reason in efficiency for denying a claimant the opportunity to comment on medical reports, particularly if a request is made by the claimant to comment. If the medical report contains an error then that will inevitably form the basis of a review or subsequent appeal.
[125] The Secretary says nevertheless that there is an appeal to correct any mistake made. I accept that this must be relevant in terms of relief which I address below. But it is important to clarify the obligations of the Panel in this context. The Panel was obliged to provide an applicant, on request, with copies of medical statements or opinions that affect the claim. The reason for this is that the claimant can then make an informed submission to the Panel and so that the Panel is better able to reach a fair decision.
[126] As to relief, I will make a declaration reflecting my statement above. But I do not set aside the decisions made on the February 2009 applications. The relevant
medical reports were supplied to Father Te Ua in advance of the NRO review. He
43 Section 14(5).
therefore had the opportunity to comment on those reports. This in my view remedied the prior procedural irregularity.
[127] For completeness I do not accept these arguments of either side about the exact nature and function of the Claims Panel and the NRO. Ms Williams submitted that the Claims Panel is not an “adversarial body” so that fairness does not require circulation of medical reports in advance. Mr Taylor submitted that the NRO undertakes a review, not a de novo hearing, so that it does not cure prior irregularity. In reality, whatever description is placed on them, the Claims Panel and the NRO are exercising statutory powers of decision affecting the lives of a vulnerable class of person. Both make decisions of substance and must observe basic principles of natural justice.
[128] Notably also, the NRO has the same powers as the Claims Panel and may make a fresh decision,44 as it did in respect of three of the five conditions previously declined by the Panel. For my part the NRO effectively performs an appellate function, quite different from the review function in Secretary v Simes.45 In that case, cited by Mr Taylor, the Court of Appeal resolved that review under the Legal Services Act 2000 did not cure a prior breach of natural justice as it did not exercise de novo jurisdiction. By contrast, while the function performed by the NRO is not literally “de novo”, it is mandated to fully reconsider the application, and did so in this case.
Fifth review claim - The unless notice
[129] By letter dated 6 November 1996, VANZ’s predecessor purported to advise
Father Te Ua as follows:
Dear Mr Te Ua
On 30 September 1996 you were offered the option of a review of your war pension for hearing loss. As you have not uplifted this option your pension for hearing loss will remain at 70%.
44 Refer s 15D(1) and s 15D(5).
45 Secretary for Justice v Simes, above n 39.
Please note:
Unless recommended by a nominated ENT specialist, no further applications or reviews of your hearing disability will be accepted.
[130] The September letter has not been found and it appears neither letter was served on Father Te Ua.
[131] Mr Taylor submits that the purported denial of further review was of no effect without valid notice of the letter.
[132] I will deal with this aspect succinctly. The basis for the purported decision to refuse further automatic reviews (if that was in fact the case) is unclear. If I considered it necessary I would set it aside and refer the matter back for reconsideration given the lack of notice. But I accept Ms Williams’ contention that the error was without a consequence as Father Te Ua continued to be entitled to pension and medical treatment related to his deafness.
[133] Furthermore, Father Te Ua retained the right to have his pension reviewed under ss 14(5) or 16(4) or 26(2) throughout the period of apparent ineligibility for automatic review. It also appears Father Te Ua did not seek to have his deafness allowance reviewed from November 1996 to July 2010. This strongly suggests that the absence of reviews was not a matter of significance to him at that time.
[134] There is a related claim that the misdirecting of the letter was negligent. I
address this below.
Sixth review claim - Decision about hernia against evidence
[135] Father Te Ua claims that the refusal by the Claims Panel and then the NRO to recognise that the hernia was attributable to service is flawed as against the evidence. This claim also links to the previous claims concerning the appropriate statutory threshold for evidence and the significance of veterans’ evidence.
[136] Mr Taylor highlights the reasons given by the NRO for rejecting the review of his hernia claim on the basis:
There is no medical evidence available to suggest that [the] … hernia is
related to his irritable bowel syndrome.
[137] Mr Taylor says that this “neatly illustrates the way that VANZ approach denying evidential validity to the veteran’s comments”. More particularly he submits:
First, in the absence of “medical evidence”, the claim is necessarily lost. His evidence about straining and the link to irritable bowel syndrome is given no weight. It is treated, as Mr Ottaway has said in his letters that it will be as “without foundation” and [does] “not …. constitute evidence”.
[138] I have already found that to presumptively treat a veteran’s evidence as
“without foundation” is flawed.
[139] But as I read the decision it is stating that there is no medical evidence to suggest that the hernias are related to the irritable bowel syndrome. The GP assessment was that the condition was caused by connective tissue degenerating with age. Father Te Ua’s statement as to fact, namely the existence of the hernia and the appearance of symptoms in conjunction with straining associated with his irritable bowel syndrome, unless proven to be lacking in credibility, must be taken into account. But the Claims Panel and the NRO are mandated to form a view as to whether or not there was a proper medical basis for the conclusion that the hernia related to the irritable bowel syndrome. Unqualified assertion by a veteran to that effect is not, with respect, reasonable evidence on that specific diagnostic issue. It does not meet the basic requirement of reliability.
[140] None of this analysis however precludes the ability of the Claims Panel to resolve a claim in favour of a veteran without medical evidence, bearing in mind that the ordinary rules of evidence do not apply. So, the Claims Panel may apply its own judgment to find that the nexus has been established on the evidence of fact. Plainly also, if there is some reasonable evidence that the hernia might be linked to the irritable bowel syndrome, then that would have been sufficient to engage the presumptions in favour of Father Te Ua. But this was not the medical opinion of his then GP, and the Claims Panel and the NRO were acting within their jurisdiction to reject the claim on the basis that, in light of the available medical opinion, the claim had not been properly established.
Seventh review claim
[141] The seventh claim concerns two requests by Ms Stankovich for reimbursement. The first request concerned reimbursement for lost wages while she travelled with Father Te Ua for consultation and an endoscopy. The second request concerned travel and accommodation expenses incurred in relation to her travel with Father Te Ua while he underwent an eight week chemotherapy course at Palmerston North. She also seeks compensation for loss of income.
[142] The Secretary pleads that that he refused to accede to the first request because he required a certificate from Ms Stankovich’s employer as to the quantum of lost wages.46 It is also pleaded that the second request was refused because Ms Stankovich was not accompanying Father Te Ua for the purpose of escorting him to or from treatment but for the purpose of staying with him. In correspondence and in argument the Secretary also maintained that there was no power to pay for lost wages unless the veteran was required to report for treatment as part of the process for applying for a pension.
[143] Mr Taylor contends that the requirement for written confirmation from Ms Stankovich’s employer and the refusal to reimburse Ms Stankovich for accommodation costs was unlawful and unreasonable. He submits (in summary) that:
(a) Section 29 of the Act mandates the Secretary to pay an allowance to an attendant if he is “satisfied that the services of the attendant are indispensable”;
(b)The combination of regs 34, 35, 40 and 42 contemplate payment for lost earnings and travel expenses to attendants obliged to travel with a
46 The reasons for refusal to consider the application were also recorded in a letter from the
Secretary as follows:
“Therefore, before any consideration of a claim for loss of compensation occurs I require a certificate from your wife’s employer with the following information:
the leave entitlement available to your wife at the time the travel was undertaken;
and
details of your wife’s daily wages after the deduction of tax.
Your request for loss of compensation will be considered when your wife’s employer provides the information listed above.”
veteran who is required to report for medical examination or treatment or to attend an Appeal Board or Claims Panel;
(c) Reg 42 specifically deals with loss of income and does not require the production of an employer’s certificate (unlike reg 40(3) dealing with claims by veterans).
[144] He thus submits that the Secretary went astray in:
(a) Requiring a certificate from Ms Stankovich’s employer; and
(b)Limiting payments to situations where the authorities have exercised a power to compel Father Te Ua to attend somewhere.
[145] Mr Taylor also contends that the Secretary also made errors as to quantum. He says that the Secretary erroneously assumed that reg 42 meant that if Father Te Ua did not receive anything while in hospital, his attendant cannot either. Mr Taylor says reg 42 simply fixes the maximum that can be paid. For the first decision that was 100% of the pension. In relation to the second decision, Father Te Ua had an additional 60% payment and that this needed to be added in to find the maximum amount payable.
[146] The plaintiffs seek that the decisions to refuse to make payment be set aside and that orders substituting payments of an appropriate daily rate in respect of Ms Stankovich’s lost income should be made.
[147] Ms Williams responds that:
(a) VANZ can only make payments where authorised by statute.
(b) VANZ is entitled to seek evidence that Ms Stankovich incurred lost wages.
(c) There is no provision for an escort attendant to stay with a patient while they are hospitalised for routine medical treatment.
(d) The power to make payment under regs 40(3) and 42 only arises when an order under ss 27 or 15B is made. Those sections provide that compensation for wages can only occur when a veteran is required to report for medical examination or treatment.
(e) As a travel escort cannot receive more than the veteran, if the veteran is not entitled to compensation of wages under reg 40(3) (for example because he or she is not required to report for treatment) nor then is the escort entitled to compensation.
[148] In relation to the first claim, Ms Williams accepts that Dr Belfield informed Father Te Ua’s case manager that the first plaintiff had to travel to Auckland to see a specialist regarding his reflux but was unfit to travel alone. In this context reg 40(3) requires that a claim for lost wages be accompanied by a certificate from the claimant’s employer and that any payment authorised must be reasonable. As the information was not provided the claim was not completed and could not be considered.
[149] In relation to the second claim for wages, that is, while Ms Stankovich was staying with the first plaintiff in Palmerston North in 2012, the first defendant submits there is no legal basis on which the payment could be made, as Father Te Ua’s treatment in Palmerston North was not required for treatment under reg 40(3).
Assessment
[150] Ms Stankovich’s essential complaint about the first refusal to reimburse her for lost wages is that she was required to provide proof of loss of wages. For my part, it is quite plain that the Secretary was able, indeed obliged, to obtain proof of any relevant loss claimed. No express language is necessary. It is an automatic corollary of the proper implementation of a limited statutory power to expend public money. Put another way, a condition precedent to the exercise of the power to make a payment under reg 40 or 42 is that the claimant has, in fact, lost wages. A bare assertion is not enough. There must be some proper supporting information to enable power to be triggered.
[151] In this case, Ms Stankovich sought payment for lost wages but refused to provide evidence from an employer as to whether or not she in fact lost those wages. On that basis, I can see no proper objection to providing a proof of loss by way of loss of wages and Ms Stankovich’s complaint on this ground must fail.
(c) An unreasonable decision not to grant an allowance is capable of remedy by way of judicial review for the sum owing with the result that relief in negligence is unnecessary and to the extent that it places an additional essentially unnecessary burden on VANZ’s resources, contrary to it.
[179] I accept Ms Williams’ submission that the present situation is analogous to various cases where the Courts have refused to find a duty of care because the legislation thoroughly covers the ground.62
[180] I can also easily envisage situations where VANZ could be confronted with co- extensive public and private law processes, all seeking the same essential relief – that is to obtain an allowance or reimbursement under the Act. I can envisage situations where the Court might be called upon to remedy alleged negligence in private law proceedings and then to declare an entitlement to a pension or allowance when, at the same time, the same claim is being considered by the NRO, or the Appeals Board, or the Secretary. The negligence claim based on the failure to be properly informed of previous decisions provides a good example. Father Te Ua could have conceivably commenced a private law action at any time following the
receipt of the claims panel decision. He could also, at the same time, have initiated a
62 Referring to Jones v Department of Employment [1988] 1 All ER 725 (CA); Chalecki v Accident
Rehabilitation and Compensation Insurance Corporation HC Greymouth AP 28/01, 10 October
2001, and Pearce v Accident Compensation Corporation (1991) 5 PRNZ 297 (HC).
review to the NRO and then appeal to the Appeals Board. A further review to the Secretary could then have been sought. Any one of those statutory decision makers might reach a different view from the Court in the private law action as to the significance of the previous decision. The mind boggles as to which of the decisions, the Court or the statutory decision maker has primacy. This is in my view an additional significant policy reason to reject a common law duty of care
essentially based on the same statutory relationship established by the Act.63
[181] As to general damages claims, it would seem odd to be able to sue for general damages when the underlying primary claim is capable of remedy within the statutory frame. There may be circumstances were the evidence of harm or distress engages the Court’s impulse to find a remedy.64 I do not propose to speculate on what those circumstances might be. But on the facts pleaded, I do not consider that the generalised claims to distress and frustration call for separate consideration by this Court in a private law context given the remedies already afforded by the Act. I elaborate further on this when I address the substantive merits of a general damages
claim at [196].
[182] I also consider that the fourth negligence claim based on unreasonableness falls squarely within the purview of Morrison65 where the Court of Appeal refused to permit an action in negligence relating to an erroneous interpretation and application of a District Plan. I consider that the reasoning there, if not directly binding on me, is persuasive in this context. In short, the Secretary’s decision to pay an allowance requires an evaluation (including interpretation) of and by reference to regulatory
requirements. It may involve the application of policy to achieve fairness across all veterans and their support people. It seems to me that the rationality of a decision in
this context is “hardly susceptible to an application of a negligence standard”.66
63 Compare with Morrison above n 51, at 338; Pearce v Accident Compensation Corporation,
above n 62, Jones v Department of Employment, above n 62.
64 Naysmith v Accident Compensation Corporation, above n 60, at [71] citing Barrett v London
Borough of Enfield [2001] 2 AC 550 (HL).
65 Morrison, above n 51.
66 At [12].
[183] I accept that the Courts have moved away from the notion that only irrational decisions are capable of triggering a negligence claim.67 Nevertheless, in terms of the irrationality claimed in this case, the legality and rationality of the decision to decline an allowance can be tested in the usual way and the equivalent relief obtained in judicial review proceedings without the added intellectual gymnastics needed to make out a negligence claim.
Step 3 – fairness
[184] Mr Taylor emphasises that veterans are a special class of vulnerable person and the significant distress caused by negligent performance of statutory duties or administrative function should be actionable. But, for reasons already expressed, I consider that to embroil VANZ in private law actions as pleaded, that can otherwise be resolved within the scheme of the Act, or by orthodox judicial review proceedings, presents a significant and largely unjustified drain on the resources better directed to the pension needs of veterans. I include within this the significant commitment of human resource required to address private litigation claims.
[185] In these circumstances, I consider that the benefits of a private action in negligence in relation to matters that can be redressed through the Act’s processes are outweighed by the potentially duplicative costs associated with them.68
[186] For the forgoing reasons I do not consider that the first, third and fourth claims as pleaded are actionable by way of negligence.
[187] The negligent (or intentional) mishandling of a veteran’s records falls into a different category. The absence of records might result in declinature of a claim to an allowance, resulting in loss that is not otherwise recoverable under the scheme of the Act. It is also difficult to see why such a claim would be precluded as a matter of policy, because the subject matter of the claim is not about the claims or decisional process, but rather improper or negligent interference with it and for which the Act
may not be able to provide a remedy.
67 See for example: 64 v London Borough of Enfield, above n 64.
68 As to the need to balance cost to the public against loss prospective to plaintiffs, refer to Barrett v London Borough of Enfield, above n 64, at 559 per Lord Browne-Wilkinson.
[188] Turning to the merits, the facts at their highest are set out in Mr Mountain’s affidavit evidence. If it can be proven on the balance of probabilities that inappropriate culling occurred, then it might be said VANZ (or its predecessor) has negligently (or worse intentionally) failed to protect the interests of veterans for the purpose of any subsequent applications they may make. Whether this gives rise to an action in damages is also difficult to assess. But it could well be that a policy of destroying a veteran’s records interferes with a veteran’s capacity to make a claim and that VANZ should therefore be liable for any consequential loss flowing from their absence. Against this prospect, I also accept the submission that any potential unfairness to a veteran should be ameliorated in most cases by the correct application of the statutory presumptions mentioned above. In any event, I am not prepared to venture a final opinion on the availability of the claim when the factual basis for it is yet to be established.
Breach of statutory duty
[189] I gather from Mr Taylor’s submissions that he is claiming breach of statutory duty simpliciter. Whether an enactment gives rise to such a cause of action is a question of ascertaining the intent of the Legislature.69 As stated by Lord Browne Wilkinson in X (Minors) v Bedfordshire County Council 70:
…The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. …
[190] His Lordship added:
… If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: …
69 See Naysmith v Accident Compensation Corporation, above n 60 and the cases cited therein.
70 X (Minors) v Bedfordshire County Council [1995] 3 All ER 353 (HL) at 364.
[191] It may be anticipated from the foregoing discussion that I do not consider that Parliament envisaged private law actions for breach of a statutory duty simpliciter that are already capable of remedy within the framework of the Act. I observe further that given the multilayered opportunities afforded to veterans to redress error by appeal or review, little need or room has been left by the legislation for such an action.
[192] Reinforcing this view s 16(4) is worth repeating:
16 Appeals to War Pensions Appeal Board
…
(4) The decision of an Appeal Board shall be final and conclusive:
provided that, if at any time a claimant whose appeal has been determined satisfies the Secretary that by reason of additional evidence becoming available or for any other reason whatsoever it is desirable in the interests of justice that his claim should be reconsidered, the Secretary shall accept from him a fresh claim and any such claim shall be dealt with in all respects as if it were an original application for a pension.
…
[193] Locked within this provision is an assumption that a decision of the Appeal Board is final (brooking no further or collateral challenge), but still conferring a residual power on the Secretary to review the position on receipt of further information.
[194] As Ms Williams highlighted in her submissions 71 to allow an action for breach of a statutory duty simpliciter where the breach can be so thoroughly remedied within the statutory framework, appears inherently discordant with the statutory scheme.
[195] Turning then to each of the claims:
(a) The first breach of statutory duty claim has (it appears) two components. First, the officers of VANZ failed to see what disabilities
71 Borrowing dicta from Glidewell LJ in Jones v Department of Employment, above n 47, at 734.
had in the past been accepted as attributable to Father Te Ua’s war service. Second, in breach of s 26, the claims panel and then the NRO purported to reduce Father Te Ua’s pension without authority to do so The details of this claim are set out at [65]-[67]. I am prepared to read into the legislation a duty or function to ensure that past decisions are made known to the Claims Panel (et al). I am not however satisfied that the claims panel or the NRO can be said to breach s 26 when they are responding to an application for pension lodged by a veteran in respect of a condition for which he already has cover. I consider that the “breach” is more properly described as failure to have regard to a relevant consideration and simply a reviewable error. In any event, the alleged breach was remedied by the Secretary pursuant to his statutory power of review under s 14(5). This is a paradigm example of how the Act provides the frame within which to correct error. I am therefore not prepared to find that a private action for this breach is available to Father Te Ua.
(b)The second claim concerns delay. The details of this claim are set out at [68]-[93]. The delay in making a decision in relation to the reflux related conditions did not meet the required statutory standard “as soon as practicable”. I will make a declaration to this effect in the context of the judicial review proceedings. While it could be said that the statute does not provide a remedy for delay, I do not consider it is necessary or appropriate to do so for the purposes of a private law action. As I have said, the requisite standard affords some latitude to the VANZ to process claims at a rate which is practicable. It is difficult to envisage that in providing such a flexible, indeed permeable standard that Parliament intended for private actions for non compliance with it. Rather, administrative law, with its flexible remedies, including declaration and mandamus, provides an obvious vehicle to redress undue delay.
(c) The third claim concerns the loss of records. Mr Taylor contends that the failure to maintain a complete record is a breach of statutory duty.
As I have said I am unable to make any definitive finding on whether or not VANZ generally, or specifically in relation to Father Te Ua, failed to maintain complete records. Affidavit evidence provided on this matter was largely of a general character, not subject to cross- examination, and therefore does not provide a proper basis to resolve this issue in accordance with acceptable judicial method. For completeness, unlike the other claims for breach of duty and negligence, there may be a proper basis for such a claim at law. I accept that one of VANZ’s functions must be to maintain proper records. It is an aspect of the proper administration of war pensions and is necessarily incidental to the exercise of powers to assess claims and then provide pensions based on those claims. But whether the failure to maintain information on files is an actionable breach of statutory duty in any particular instance is a complex matter. Not every deficient performance of a statutory function correlates to an
enforceable duty to the affected person.72 In this context, the analysis
is coloured by among other things, the complications inherent to the task of collating information about servicemen stationed in various theatres of war and the historical nature of any alleged error. As with the negligence claim, I am not prepared then to delve into whether Parliament envisaged scope for a claim in damages for mishandling of records, when the factual basis for the alleged error is not clearly established.
The general damages claim
[196] General damages are sought in the sum of $60,000 for Father Te Ua and
$40,000 for Ms Stankovich, or alternatively a global award of $100,000. While this claim is framed in terms of the first claim, I apprehend that Mr Taylor is seeking
redress in relation to what he describes as systemic failure.
72 X (Minors) v Bedfordshire County Council [1995] 3 All ER 353 (HL); Select 2000 Ltd v ENZA Ltd [2002] 2 NZLR 367 (CA); Mawhinney v Waitakere City Council [2007] NZRMA 173 (HC).
[197] The evidential basis for this claim is largely found in the second affidavit of
Father Te Ua. He observes:
7.As a collection of failures, they had the following effect on me in my failing health. My Post Traumatic Disorder symptoms increased with every fight we had to have with VANZ. There was a time when I could have tolerated medical professionals that were ignorant of the impact of Agent Orange on Vietnam Veterans. I used to do some basic education with any new specialists about Agent Orange and what impact it had on me. But, as time went on and I learned of the organisational failures within VANZ and experienced their effect on Lynette and me, I seethe if I ask about a specialist’s level of knowledge about Agent Orange and Vietnam Veterans medical conditions, and they know nothing or give me some statements that they treat Vietnam Veterans like any other patients and am unable to remain in the same room. Lynette has to pick up the pieces.
8. The increased PTSD has also ended up with very disturbed sleep.
Lynette tells me that I am often clambering around in bed waking her and the children up. I can still get suddenly awoken by the dog barking – believing that there is someone on the section. These higher levels of daily stress and psychological stress, and increased contact with Health professionals, have increased dependence upon my wife and our financial stresses. Lynette is the only adult working in our household, with one child attending Polytech and the other child unwell requiring our support as he recovers from his own experience in Afghanistan. My anxiety and depression have increased as a result.
9.The longer the problems dragged on with VANZ the more stressed I became. I have wanted to finalise some personal and family matters with my children to my first marriage, regarding the affects of Agent Orange on their DNA, potential for DNA damage and medical conditions etc, but the stress of doing so and declining energy means that I have not dealt with this. I feel all my health conditions have been impacted by the problems at VANZ. My arthritis and joint pain has been exacerbated.
[198] Ms Stankovich observes that the lack of support from VANZ exacerbated the effects of Father Te Ua’s post-traumatic stress disorder combined with the after- effects of an intensive oncology radiation regime. She stated that it created further physical, emotional and financial stress for her and the children.
[199] Assuming I am wrong about the unavailability of actions for breach of statutory duty and negligence, I nevertheless reject the claim for substantial general damages of $100,000 for the following reasons:
(a) I accept Mr Ottaway’s evidence that Mr Te Ua was not financially
disadvantaged as a consequence of the errors, including the error to refuse cover for reflux. Mr Taylor did not strongly contend otherwise, observing:
If one thinks of things solely in financial terms, there is some plausibility to his position.
(b)Distress caused by bureaucratic error,73 even one leading to substantive error, is to be expected in dealings with any bureaucracy.74 In my view, there must be clear evidence of serious harm, attributable to the identified error in order to justify an award of general damages. In this regard I am prepared to accept Father Te Ua’s evidence that:
His PTSD symptoms increased with every fight… with
VANZ…
But the connection between his distress and the specific error or errors is simply too diffuse on the evidence to properly establish the claim to substantial general damages. Relevantly, the claim in respect of reflux was made together with claims for six other conditions, each requiring assessment and evaluation and concomitant delay and distress. Unpicking the harm caused by the identified administrative law error is a difficult exercise in this context, and not capable of resolution on the largely generalised (affidavit only) evidence of harm. It is certainly not sufficient or sufficiently specific to substantiate a claim of $100,000.
(c) General damages in cases involving essentially administrative negligence (eg the leaky building cases) have been relatively modest,
notwithstanding lengthy and demonstrable interference, caused by the
73 I do not include malicious prosecution or misfeasance in public office within this category.
74 Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Bookers, Wellington, 2013) at [25.2(2)] referring to Mouat v Clarke Boyce [1992] 2 NZLR 559 (CA) at 569 where claims for general damages in a general business context were seen as an incident of commercial life. Though also see Heslop v Cousins [2007] 3 NZLR 679 (HC) where an award of $50,000 was made where the negligence of the plaintiff ’s solicitor led to bankruptcy.
error, with the lives of affected persons.75
(d)As far as I can tell, general damages have not been awarded in relation to distress falling short of severe recognisable illness for administrative error in the absence of a related tort (eg causing physical damage and/or economic loss), except in relation to public law compensation for gross violation of the New Zealand Bill of Rights Act 1990. While Father Te Ua’s distress is understandable, it
is not in my view, on the evidence, in this category.76
[200] Nothing said here should be seen to diminish the distress felt and caused by VANZ procedures. Assuming the jurisdiction to do so, it may be that a modest award for damages to signal the Court’s concern about the failure to discharge the requirements under the War Pensions Act may have been appropriate (again by analogy to the Bill of Rights cases). There was no detailed argument on this, so I do not address it further. But it is not the function of this Court to award substantial sums in general damages unless the evidence establishes on the balance of probabilities a serious harm attributable to the error that might not ordinarily be expected as an exigency of dealing with administrative bureaucracies. The evidence did not meet this threshold.
Crown Proceedings Act 1950
[201] It has proven unnecessary for me to address the scope of the Crown
Proceedings Act, s 9. That section states:
75 In the range of $15,000-$25,000 – see Todd, above n 66 at [25.2.09(2)] and cases cited therein.
See for example Body Corporate 191608 v North Shore City Council HC Auckland CIV 2008-404-2358, 19 February 2009 where some unit owners in the Body Corporate were awarded general damages in varying amounts from $15,000 to $50,000; and La Grouw v Cairns (2004) 5 NZCPR 434 where O’Regan J found that Mrs La Grouw was entitled to general damages of $5,000 if the District Court found that there was a misrepresentation.
76 Compare with Manga v Attorney-General [2000] 2 NZLR 65 (HC) where unlawful detention for
252 days resulted in a general damages award of $60,000.
9.Crown not liable to pay compensation or damages for death or disablement of members of New Zealand armed forces where pension may be claimed
(1) No proceedings for compensation or damages shall lie against the Crown or any officer of the Crown in respect of the death or disablement of any member of the New Zealand armed forces, if-
(a) any pension has at any time been paid or is being paid under the War Pensions Act 1954 in respect of that death or disablement; or
(b) a War Pensions Board has determined that for the purposes of section 19 of the War Pensions Act 1954 that death or disablement is attributable to, or is deemed to be attributable to, the service of the member with the forces, or that the condition that resulted in that death or disablement was aggravated by his or her service with the forces:
provided that this subsection shall not exempt an officer of the Crown from liability for any act or omission in any case where the court is satisfied that the act or omission was not connected with the execution of his or her duties as an officer of the Crown.
[202] Ms Williams submits that as the purpose of s 9 is to protect the integrity of the Act, proceedings in respect of the administration of pensions must also be proceedings in respect of the death or disablement. Section 9 is therefore, she submits, a bar to proceedings based on the first, third and fifth reviewable actions or claims. In particular, she submits:
(a) The first review claim relates to a rejection of the application for reflux, which has since been corrected. The upshot is that a pension is being paid in relation to the subject matter of the claim.
(b)The third review claim relates to the maintenance of records and the decision making process in respect of the first plaintiff’s alleged disablements.
(c) The fifth review claim relates to the misdirecting of letters concerning hearing loss, which is an accepted condition for which Father Te Ua is receiving a pension and therefore directly covered by s 9.
[203] Mr Taylor responds that s 9 is in effect a privative clause and should be interpreted restrictively. He submits that s 9 operates to remove the otherwise existing rights to damages or compensation only in respect of those matters that are within the remedial system provided by the Act.
Analysis
[204] I have commented at length at what I consider to be the co-extensive nature of the private and public law claims available to the plaintiffs in this case. In short, I consider that a remedy can be found in the remedial structure of the Act in relation to all claims save for the alleged loss of records. My tentative view therefore in relation to s 9 is that the first reviewable action (first claim) and the fifth reviewable action (fifth claim) relate to matters for which a pension has already been granted and in respect of which the Act can provide a remedy. The loss of records, and the potential effect of that on the ability to make a claim, is however in my view outside the scope of s 9. Indeed, it specifically relates to the inability to obtain relief under the Act because of the lack of availability of key information. Accordingly, had it been necessary to do so, I would have found that the claims in relation to loss of records would not have been barred by s 9. In saying this I am cognisant of the
decision of Mahon J in McQuinlan v Attorney-General77 who interpreted the
reference to disablement widely to include not merely incapacity but all the physical and mental disadvantages arising from the injury or disease which has been occasioned or aggravated by service in the armed forces. He went on to conclude that a determination under s 9(1)(b) is an independent bar to the action in that case and would have been a bar even if no pension had in fact been granted. But I do not think that those observations bear on the claim in relation to loss of records, because the underlying focus of the claim is the effect of the loss on the ability to make a claim to a pension, rather than a claim to cover for disablement per se.
Discretion
[205] I address the reasons for grant or otherwise of relief under each claim where relevant. I record for present purposes that I proceeded on the basis that the
77 McQuinlan v Attorney-General [1975] 1 NLZR 550 (SC).
jurisdiction to refuse relief is strictly limited but that as the Court of Appeal recently said in Rees v Firth:78
Given the discretionary nature of public remedies, it may be that a more nuanced approach is necessary in the generality of cases.
[206] It will be seen that I propose to make declarations on the issue of delay. I have considered whether the declarations are necessary given the current practice of VANZ. I have, however, come to the view that given the nature of the delay, that it is appropriate that the plaintiffs be afforded the relief of declaration.
[207] I have also resolved to make a declaration that the statement of policy recorded at [104] of this judgment is flawed insofar as it purports to require corroborating information where statements of veterans are not supported by information on the service file and the disability is not consistent with what is known about the role undertaken by the veterans. It is plain to me that the policy needed a correction and clarification.
[208] I also propose to declare that a veteran is entitled, on request, to receive all medical reports that will be before the Claims Panel, so that the veteran can comment or can include in submissions on the application, comments about the medical report. Having found a breach of natural justice in this respect, I can see no good reason to decline to make such a declaration.
[209] I have also found that the Secretary erred by not considering Ms Stankovich’s application for compensation for loss of wages in respect of travel only, with Father Te Ua to Palmerston North. I will direct that he reconsider Ms Stankovich’s application in this regard. Again, I can see no reason why this relief should be declined.
[210] I have rejected relief or further consequential relief on the issue of delay or on the misdirection of the unless notice to Father Te Ua. I have come to the view that
relief in relation to those matters is not necessary as I could discern no material
78 Rees v Firth [2012] 1 NZLR 408 (CA) at [48].
consequential effect of the identified errors or that any further relief would serve a practical purpose.
Outcome
[211] I now frame the outcomes in terms of the issues as stated at paragraph [5].
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] VANZ has agreed to reimburse Father Te Ua for the costs of the gastroscopy and colonoscopy and the Secretary reversed the decision to refuse cover for reflux. No further relief is needed.
Whether the delay associated with decisions on applications for disability allowances amounts to reviewable error and/or actionable breach of statutory duty
[213] I propose to make a declaration that:
(a) The time taken to make a decision on the following applications did not satisfy the statutory requirement to make a decision as soon as practicable:
(i)The applications for gout, throat/speech disorders, Pagets disease, thyroidectomy and memory loss dated 10 April 2007;
(ii) The application for reflux and fatty infiltration dated
11 February 2009.
(b)I propose to make a further declaration that the time taken between the decisions of 10 December 2009 and 9 February 2010 and notification of the decisions dated 11 January 2010 and 26 February
2010 respectively did not satisfy the requirement to notify the applicant forthwith in accordance with s 14(4).
(c) I make no other consequential order or relief. While the delays were
unjustified, I do not consider that they are so extreme as to affect the underlying reasonableness of the substantive decisions. In short, I do not consider that the delay had any material effect on the outcomes of the applications. Significantly, Mr Taylor accepts that the “delays do not appear so to have changed the circumstances that the decisions cannot stand”.
(d)I reject the claim that VANZ administers the application on a strict order of lodgement basis.
Whether medical records have been lost, and if so, the consequences of this for the assessment of applications for disability allowances
[214] I do not find, on the balance of probabilities, that the records of veterans were unlawfully or negligently purged.
[215] I propose to declare that the statement of policy recorded at [104] is flawed insofar as it purports to require corroborating information where statements of veterans are not supported by information on the service file and the disability is not consistent with what is known about the role undertaken by the veteran.
[216] I do not propose to make any additional declarations under this claim but the proper approach to the weight to be afforded to veteran’s statement is essayed at [114]–[118].
Whether withholding medical reports from a claimant prior to the decision of a
Claims Panel is a reviewable breach of natural justice.
[217] I propose to declare that a veteran is entitled, on request, to receive all medical reports that will be before the Claims Panel, so that the veteran can include in any submissions on the application, comments about the medical report.
[218] I do not propose to make any consequential orders in respect of the failure by the Claims Panel to provide Father Te Ua with a copy of medical reports in advance of its decision on his 2009 applications as I consider that any breach of natural justice was remedied on review by the NRO.
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 and actionable
[219] The letter recording that Father Te Ua was not entitled to further periodic reviews of his pension for deafness was misdirected and did not reach Father Te Ua. But I do not consider that this error had any material effect on Father Te Ua. Furthermore to the extent necessary, any consequential effect can be remedied via the processes of the Act if necessary, without the intervention of this Court.
Whether the decision to decline a disability allowance for hernia was against the evidence
[220] I find that the decision to reject the application in respect of a hernia was available to the Claims Panel and the NRO.
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] I reject the request for the claim made in relation to compensation for loss of wages in respect of travel with Father Te Ua to Auckland without proof of loss from an employer.
[222] The Secretary erred by not considering the application for compensation for loss of wages in respect of travel only with Father Te Ua to Palmerston North. I direct that he reconsider Ms Stankovich’s application for reimbursement of outgoings and loss of wages in relation to her travel with Father Te Ua to Palmerston North.
[223] I otherwise reject the claim in respect of loss of wages and other costs associated with Ms Stankovich’s stay with Father Te Ua while he received treatment in Palmerston North.
Breach of statutory duty and negligence
[224] The causes of action in relation to breach of statutory duty and negligence are dismissed for the reasons set out at [165]-[188] and [189]-[200].
[225] As noted, it may be that a claim in negligence for mishandling records is actionable in private law. But I am not prepared to provide a concluded view on the evidence currently before me.
Further direction
[226] I direct that the parties confer and where they are able, reach agreement on the terms of the directions that I propose to make. Submissions to this effect are to be filed within ten working days.
Costs
[227] I invite submissions on costs within ten working days and with replies five working days thereafter.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt
Crown Law, Wellington
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