ACC v Algie and Others
| Jurisdiction | New Zealand |
| Judge | Winkelmann J |
| Judgment Date | 13 April 2016 |
| Neutral Citation | [2016] NZCA 120 |
| Docket Number | CA528/2014 |
| Court | Court of Appeal |
| Date | 13 April 2016 |
[2016] NZCA 120
Stevens, French and Winkelmann JJ
CA528/2014
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal from a High Court decision which held the claimants who had suffered a personal injury by accident, could claim for care provided by family on an unpaid basis under s121(1) Accident Compensation Act 1972 (ACA 1972) (Compensation for pecuniary loss not related to earnings) and s80(1) Accident Compensation Act 1982 (ACA 1982) — the sections were identical for all material purposes, as was the relevant statutory context — each of the 20 respondent claimants had cover under ACA 1972 and ACA 1982 — the Accident Compensation Corporation did not inform them or their caregivers of the rehabilitative assistance by way of attendant care that was available under the Acts — the care and assistance required by the claimants was provided on an unpaid basis by family members — the decision in Estate of Simpson v Accident Compensation Corporation precluded claims by caregivers for unpaid care but the Court had indicated that it did not determine whether the injured person could themselves maintain a claim for compensation under s121(1) — fresh claims were lodged by the injured claimants themselves — whether an individual who had suffered a personal injury by accident could claim for compensation for care provided by family on an unpaid basis, under either the ACA 1972 or the ACA 1982.
H B Rennie QC, A S Butler and C J Curran for Appellant
J M Miller and K M Eckersley for Respondents
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A The appeal is allowed.
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B The question on appeal is answered as follows:
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982?
Yes.
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C There is no order as to costs.
REASONS OF THE COURT
(Given by Winkelmann J)
Can an individual who has suffered a personal injury by accident claim for compensation, under either the 1972 or the 1982 Accident Compensation Acts, for care provided by family on an unpaid basis? That is the issue in this appeal.
This is an appeal from a decision of MacKenzie J in the High Court in which he held the claimants could claim for such compensation. 1 Justice MacKenzie granted leave to appeal to this Court by way of case stated. 2 The question stated by the High Court for determination by this Court is as follows:
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982?
Each of the 20 respondent claimants had cover under the 1972 and 1982 Acts. Each had suffered a personal injury by accident, resulting in injuries of such severity that the claimants had limited ability to care for themselves. Although the Accident Compensation Corporation (ACC) paid out various entitlements in respect of their injuries, it did not carry out assessments as to the care the claimants would need in the community. Nor did it inform them or their caregivers of the rehabilitative assistance by way of attendant care that was available under the two Acts. Rather, the care and assistance required by the claimants as a result of their injuries was provided on an unpaid basis by family members.
The claims the subject of this appeal were made under either s 121(1) of the 1972 Act or s 80(1) of the 1982 Act, depending on the timing of the accident. Section 121(1) provides as follows:
121 Compensation for pecuniary loss not related to earnings
(1) Where a person suffers personal injury by accident in respect of which he has cover under this Act, or where a person dies as a result of personal injury so suffered, the Commission, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him, or in the event of his death to his administrator, in addition to any other compensation and rehabilitation assistance to which he is entitled under this Act, compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury or death, not being—
(a) Any expense or loss in respect of damage to property; or
(b) Any expense or loss incurred after the death of that person in respect of the administration of his estate; or
(c) Any expense or loss arising from damage in respect of which, or to the extent to which, no payment is to be made under subsection (1) or subsection (1A) of section 110 of this Act, by reason of subsection (2) of that section; or
(d) The loss of an opportunity to make a profit; or
(e) Any loss arising from inability to perform a business contract; or
(f) Any loss that has not for the time being actually occurred, whether or not the amount thereof is ascertainable before it occurs; or
(g) Any expense or loss in respect of or towards payment of which compensation is otherwise payable under this Act.
It is accepted that s 80(1) of the 1982 Act is identical for all material purposes to s 121(1) as is the relevant statutory context. For ease of expression we refer to the text of the 1972 Act and s 121(1) only, but our consideration of the issues encompasses issues arising under the 1982 Act and s 80(1) as well.
It is not in dispute that, if properly advised as to their rights and if given a formal needs assessment, at least some of the claimants would have been entitled to receive assistance, in one way or another, with the costs of attendant care compensated under the Acts. If any of the claimants were in need of constant personal attention because of their injury, ACC had a discretion to pay such amounts as it saw fit “in respect of the necessary care of the person” under s 121(3). ACC also accepts that, if a caregiver had contracted with the claimant for the provision of the care in return for payment, the claimants might have been eligible under s 121 for compensation from ACC in respect of payments made as they would have been “actual and reasonable expenses” for the purposes of s 121(2)(b), directly resulting from the injury or death.
With the repeal of the 1982 Act, different criteria applied for entitlement to payment for attendant care, and many of the claimants have received payments connected to their need for attendant care under later Acts. The claimants and their families now also seek back-dated payment for the unpaid care provided before the creation of these new entitlements. Most claims in that regard were initially made by the caregivers under s 121(2)(b) of the 1972 Act or s 80(2)(b) of the 1982 Act. Those provisions gave ACC a discretion to pay compensation to a person “for any identifiable actual and reasonable expenses or losses incurred by the person in giving help to the injured person”. However, this Court's decision in Estate of Simpson v Accident Compensation Corporation precluded claims by caregivers for unpaid care under those provisions. 3 When rejecting those claims the Court recorded that it did not determine whether the injured person could themselves maintain a claim for compensation under s 121(1). 4
Following the delivery of that decision, the claimants lodged fresh claims with ACC for the unpaid care they had been provided, this time under ss 121(1) and 80(1). They said the unpaid attendant care was a “proved loss” directly resulting from the claimants' injury and therefore ACC had discretion to pay compensation for it. ACC declined to pay the claimants on several grounds, including on the ground that eligibility under s 121(1) depended on proof of expenses or losses of a pecuniary nature and there was no such loss here.
ACC's decision was upheld on review. On an appeal of that decision the Accident Compensation Appeal Authority held a claim for payment for unpaid care by the injured person was permitted under s 121(1), that this interpretation was
ACC appealed that decision to the High Court, where again the claimants were successful. 6 Justice MacKenzie held the loss of bodily function that gives rise to a need for attendant care is on the ordinary meaning of the words, a loss to the injured person. He said: 7
… I consider that the loss of bodily function for which the attendant care and assistance is necessary is a “loss” for the purposes of subs (1). It is not, on that analysis, necessary to examine whether or not the injured person is under a legal obligation to pay the cost of the attendant care. From feelings of humanity, compassion, and love, a family member may provide care to the injured person which goes beyond the bounds of the legal obligations which would apply to the provision of that care on a...
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