Accident Compensation Corporation v Algie

• Jurisdiction: New Zealand
• Judge: MacKenzie J
• Judgment Date: 07 March 2014
• Neutral Citation: [2014] NZHC 409
• Docket Number: CIV-2013-485-852
• Court: High Court
• Date: 07 March 2014

Between

Accident Compensation Corporation

Appellant

and

James Algie & Ors

Respondents

[2014] NZHC 409

CIV-2013-485-852

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Appeal by the Accident Compensation Corporation against a decision of the Accident Compensation Appeal Authority that a claim for payment for gratuitous attendant care” (attendant care provided by family members) was permitted under s121(1) Accident Compensation Act 1972 and s80(1) Accident Compensation Act 1982 (compensation for pecuniary loss not related to earnings) — claimants all had cover under the 1972 Act and the 1982 Act respectively for personal injuries which limited their ability to care for themselves — had received unpaid attendant care and assistance from a family member — whether the phrases in subs (1) of both sections, “actual and reasonable expenses” and “proved losses”, involved the concept of monetary expenses, and monetary detriment and loss — whether payment was not available under the 1982 Act because the type of expense claimed was similar to that in s80(2)(b) and s80(3).

Counsel:

I R Millard QC and P A McBridge for Appellant

J M Miller and S R Lovegrove for Respondents

RESERVED JUDGMENT OF MacKenzie J

Background

1 This is an appeal against a decision of the Accident Compensation Appeal Authority (the Authority) delivered on 30 January 2013. Leave to appeal to this Court was granted by the Authority on 1 May 2013.

2 The proceedings involve 20 claimants who have cover under the Accident Compensation Act 1972 (the 1972 Act) and the Accident Compensation Act 1982 (the 1982 Act) respectively. Each of the claimants has suffered personal injury by accident. Their injuries have involved brain injuries or paralysis to an extent limiting their ability to care for themselves. Each of them has received attendant care and assistance from a family member. That assistance has been unpaid. 1 All of the claimants have applied for compensation by way of backdated payments for unpaid attendant care performed by the family members.

3 The issue on this appeal is whether the relevant statutory provisions empower the appellant, the Accident Compensation Corporation (ACC), to provide some recompense to the injured person in recognition of the provision of that care. The case is concerned only with that broad legal question. The question whether, if there is such a power, such a payment would be justified in the circumstances of any individual case is not in issue.

4 The provisions which the claimants say empower ACC to make payment to recognise the provision of care by family members are s 121 of the 1972 Act and s 80 of the 1982 Act. 2 Those sections, which are expressed in broadly similar terms, provide for:

• (a) under subs (1), payment to the person suffering personal injury by accident of compensation of such amount (if any) as ACC thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury;

• (b) under subs (2), payment to a member of the injured person's household such compensation as ACC thinks fit for any identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person.

5 The possible application of subs (2) to a situation such as that in issue in this case was considered by the Court of Appeal in two cases heard together, Simpson v ACC and Matthews v ACC. 3 The Court of Appeal held that, where the claim is made by the person providing attendant care under subs (2), the person providing the attendant care must establish a pecuniary loss or expense actually incurred by that person before ACC can exercise its discretion to make payment to the person providing attendant care. 4

6 In its judgment, the Court of Appeal added, in what it described as a “postscript”, these comments: 5

[Counsel for the appellant] frankly accepted in his oral submissions that his contention was that the Act should be interpreted so that where a family member provided care or assistance (which might otherwise have to be contracted for) compensation should be available.

We make no comment on the underlying philosophy of his submission, but the clear wording of the sections of the respective Accident Compensation Acts relied on by the appellants do not permit such an approach. Nor do we determine whether, under s 121(1) of the 1972 Act or s 80(1) of the 1982 Act, the injured person could maintain a claim for compensation in respect of such services. It is not the manner in which these cases have been advanced at any stage and given the limits of the case stated inquiry we are not able to express any view on the point.

7 As that passage makes clear, the Court of Appeal expressly did not determine whether, under subs (1) of the respective provisions, the injured person could maintain a claim for compensation in respect of the attendant care provided to that person. 6

8 Applications by the appellants under ss 121(1) and 80(1) were made following the delivery of that Court of Appeal decision. ACC declined all of the

applications, on the grounds that it was a requirement of a claim under subs (1) that the injured person must have incurred an actual and reasonable expense or proved loss, and the evidence of the care provided by the family members did not establish any actual expense or loss. That decision was upheld on review, and was then the subject of the appeal to the Authority. 7

9 The appeal was successful. The Authority held that a claim for payment for what the Authority described as “gratuitous attendant care” is permitted under s 121(1) of the 1972 Act and s 80(1) of the 1982 Act. It further held that nothing in the later legislation prevents the Corporation now making such payment to those appellants who qualify by virtue of the attendant care they received. The claims were remitted back to ACC for investigation and decision.

10 ACC appeals against that decision of the Authority.

Submissions

11 Mr Millard QC for ACC submits that the key words in subs (1) are “actual and reasonable expenses and proved losses necessarily and directly resulting from the injury”. Both phrases, “actual and reasonable expenses” and “proved losses”, in their context in the Act, involve the concept of monetary expenses, and monetary detriment and loss. Where care is given without charge there is no actual expense incurred by, or personal monetary detriment to, the injured person. The interpretation is reinforced by the heading of the section “Compensation for pecuniary loss not related to earnings”, and by the exclusions in subs (1), particularly those in (d) and (f). This restriction of the section to monetary expenses and losses is reinforced by the context, of both the section and the Act as a whole.

12 In submitting that the term “proved losses” refers to losses of a pecuniary nature, counsel for ACC refers to the decision of the Court of Appeal in Simpson v ACC and also to comments by the Court of Appeal in ACC v Broadbelt and by this Court in XY v ACC. 8

13 Alternatively, ACC refers to a difference in the wording between the sections in the 1972 Act and in the 1982 Act. It submits that, even if compensation may be payable under the 1972 Act, the exclusion in s 80(1)(h) of the 1982 Act means that it is not payable under the latter Act, because the type of expense claimed here is similar to that in s 80(2)(b) and s 80(3).

14 Mr Miller for the respondents supports the reasoning of the Authority, and submits that the provision should receive a generous and unniggardly interpretation. He submits that the interpretation contended for by ACC would lead to anomalies and would not be consistent with the principles guiding the introduction of the “no fault” compensation scheme. He draws support from several cases under other ACC legislation, and other cases in which a similar issue has been dealt with in the context of common law claims for personal injury damages.

Discussion

15 The meaning of the provision, in applying it to the relevant facts, must be ascertained from its text and in light of its purpose. Even if the meaning of the text may appear plain in isolation from its purpose, that meaning should be checked against the purpose in order to observe the requirements of s 5 of the Interpretation Act 1999 that text and purpose are the key drivers of statutory interpretation. 9

16 The overall purpose of the 1972 Act and the 1982 Act is to provide compensation, in the terms mandated by the Act, to the victims of accidents. The long title to the 1972 Act records that it is an Act to make provision for (inter alia) “the rehabilitation and compensation of [persons having cover under the Act]”. The focus must be on the specific purpose of subs (1) in the scheme of the Act having regard to that overall purpose of the two Acts.

17 Approaching the matter first by reference to the plain words of the section, I define the relevant question as being whether the provision of attendant care by a family member falls within the words “proved losses necessarily and directly resulting from the injury”. I consider that the necessary focus is on the words

“proved losses”, as it is clear that the injured person has not incurred any “actual and reasonable expenses” in respect of the attendant care

18 The Court of Appeal held in Simpson that the words “any identifiable actual and reasonable expenses or losses incurred” in s 121(2)(b) of the 1972 Act, and the words “any identifiable and reasonable expenses or losses incurred” in s 80(2)(b) of the 1982 Act, do require proof of actual monetary loss or expenses incurred by a person in giving help to another who has suffered personal injury by accident. 10

19 The wording of the two subsections is similar, but subtly different. The key words in subs (1) are “proved...