IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2019-485-135
[2020] NZHC 1234	

UNDER	the Accident Compensation Act 2001	
IN THE MATTER OF	an application for leave to appeal to the Court of Appeal under s 163(1) of the Act	
BETWEEN	KURTIS LARKIN (by his litigation guardian Penelope Hoare) Applicant	
AND	ACCIDENT COMPENSATION CORPORATION
Respondent	

Hearing:	On the papers	
Counsel:	T W R Lynskey and J V Copland for Appellant H B Rennie QC and C J Curran for Respondent	
Judgment:	8 June 2020	

JUDGMENT OF CLARK J

Introduction

[1]	In a judgment  delivered  26  November  2019  I  dismissed  an  appeal  by Mr Larkin against a decision of Judge Walker in the District Court at Wellington (the November 2019 decision).1 Judge Walker upheld a decision by the Accident Compensation Corporation (ACC) denying Mr Larkin back-payment of attendant care costs between 1 July 1993 and 31 March 2002 on the basis the ACC had no power to compensate Mr Larkin for that period.2 Mr Larkin, through his litigation guardian

1	Larkin v Accident Compensation Corporation [2019] NZHC 3085.
2	Larkin v Accident Compensation Corporation [2018] NZACC 177 (DC).
LARKIN (by his litigation guardian Penelope Hoare) v ACCIDENT COMPENSATION CORPORATION [2020] NZHC 1234 [8 June 2020]

Ms Penelope Hoare, now seeks leave to appeal the November 2019 decision pursuant to s 163 of the Accident Compensation Act 2001 (the 2001 Act).

[2]	The applicant seeks leave to appeal on the following question of law:

Do sections 374 and 376 of the Accident Compensation Act 2001 confer any power on the respondent to compensate the applicant for constant personal attention/attendant care provided over the period 1 July 1993 to 31 March 2002?

[3]	The respondent opposes the application on the  principal  basis  that  the  High Court’s findings do not give rise to a question of law capable of bona fide and serious argument.

Leave principles

[4]	Section 163 of the 2001 Act provides:

163	Appeal to Court of Appeal on question of law

(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

…

[5]	The Court of Appeal in Cullen v Accident Compensation Corp outlined the principles applicable to applications for leave to appeal under s 163 noting that the approach is the same as towards an application for leave under s 67 of the Judicature Act 1908 (now s 60 of the Senior Courts Act 2016).3 The Court will exercise the power to grant leave to appeal leave if satisfied there is an important question of law capable of serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.4 The primary

3	Cullen v Accident Compensation Corp [2014] NZCA 94 at [5].
4	At [5], citing Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corp HC Wellington AP266/00, 6 July 2001; Khan v Accident Compensation Corp HC Auckland CIV-2007-485-1632, 14 August 2008 at [5]; Ellwood v Accident Compensation Corp [2012] NZHC 2887 at [10]; and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

focus is on whether the question of law is worthy of consideration.5 A further consideration will be the desirability of finality in litigation and the overall interests of justice.6

[6]	I also bear in mind Williams J’s observations in Atapattu-Weeasinghe v Accident Compensation Corporation, an application for leave to appeal a decision of the District Court upholding a decision of the ACC.7 The Judge observed:
[2] … Leave to bring a second appeal in this fashion is not lightly granted partly because leave has already been declined once in the District Court, and partly because the role of this Court on a second appeal is not broadly corrective. Rather, it is focused on issues of principle and matters of importance beyond the interests of the parties in dispute.

Analysis

[7]	The question of law raised by the application for leave to appeal concerns the proper interpretation of the transitional provisions of various Accident Compensation Acts for the purpose of backdating compensation payments.8 The question is one, therefore, involving both a public and a private interest. The key issue is whether it is a question capable of serious argument.

[8]	The factual background to the proceedings is set out in the District Court decision and the November 2019 decision.  The essential issue on appeal to the   High Court was whether s 374 of the 2001 Act (and its equivalent provision, s 149(2) of the Accident Rehabilitation and Compensation Insurance Act 1992) can be interpreted as including not only persons actually receiving compensation under s 121 of the Accident Compensation Act 1972 or s 80 of the Accident Compensation Act 1982 but also persons who were entitled to but were not receiving compensation.

5	Cullen v Accident Compensation Corp, above n 3, at [5] citing Khan v Accident Compensation Corp, above n 4, at [5]; and Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33].
6	Cullen v Accident Compensation Corp, above n 3, at [5] citing Knight v Accident Compensation Corp HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18].
7	Atapattu-Weerasinghe v Accident Compensation Corp [2017] NZHC 142, cited in Hastings v Accident Compensation Corp [2019] NZHC 761. Similar comments were made in Waller v Hider [1998] 1 NZLR 412 (CA) at 413 in the context of s 67 of the Judicature Act 1908.
8	Namely, the Accident Rehabilitation and Compensation Insurance Act 1992, s 149; the Accident Insurance Act 1998, s 439; and the Accident Compensation Act 2001, ss 374 and 376.

[9]	Section 149 relevantly provides:

149 Compensation for pecuniary loss not related to earnings

(1)	Where any person was receiving or entitled to receive any compensation under section 121 of the Accident Compensation Act 1972 or section 77 or section 80 of the Accident Compensation Act 1982 immediately before the 1st day of July 1992, that section shall continue to apply to payments in respect of that person until the 31st day of December 1992 as if those sections had not been repealed.

(2)	The reference to the 31st day of December 1992 in subsection (1) of this section shall be read as the 30th day of June 1993 in respect of compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 that is compensation in respect of—

(a)	Provision of attendant care (being personal care and mobility assistance necessary for the injured person); or

…

(3)	Notwithstanding subsections (1) and (2) of this section, where any person was receiving compensation under section 121 of the Accident Compensation Act 1972 or section 80 of the Accident Compensation Act 1982 in respect of attendant care (being personal care and mobility assistance necessary for the injured person) at a weekly rate of $350 or more immediately before the 1st day of July 1992, those sections shall continue to apply in respect of that person as if those sections had not been repealed and the entitlements in respect of the person may be reassessed from time to time under those sections.

[10]	In the section of the November 2019 decision discussing the scope of the dispute I stated:

[17] The key question is whether Mr Larkin is entitled to compensation under s 149(3) as opposed to s 149(1), despite the fact he was not “receiving compensation … at a weekly rate of $350 or more” (the language of s 149(3)). Both parties accept Mr Larkin is at least entitled to compensation from the date of his birth in 1992 until 30 June 1993.

[11]	I then stated (footnotes omitted):

[30]	Section 149(1) clearly distinguishes between two groups of claimants: those receiving compensation and those entitled to receive compensation. When s 149(3) was enacted, Parliament omitted any reference to those entitled to receive compensation. The distinction was the subject of comment by the Court of Appeal in Campbell and Handley v ACC.

[31]	As Judge Walker in the decision under appeal accurately observed “the wording of s 149 is clear, and the distinction between the wording of

s 149(1) and s 149(3) deliberate” and has been “transported into later legislation without change”.

[32]	There is no ambiguity in either s 149 of the 1992 Act, or s 374 of the 2001 Act. Mr Larkin does not fall within the clear words of either because he was not receiving compensation for attendant care at a weekly rate of $350 or more immediately before 1 July 1992. By his approach to s 149, the appellant collapses the distinction that Parliament purposefully drew between those in actual receipt and those entitled to receive but not in fact receiving …

[12]	In his detailed and respectful submissions Mr Lynskey argues several issues arise from the November 2019 decision.

[13]	First Mr Lynskey argues the November 2019 decision is in conflict with the High Court decision in Taylor v Taite9 a case Mr Lynskey regards as remaining “something of a fly in the ointment”.

[14]	Taylor v Taite involved a claim for underpaid attendant care and which member of the family was to be paid by ACC.10 One of the issues was whether the ACC payments were made under s 80 of the 1982 Act or the 1992 Act because the respective entitlement provisions had different requirements for the application of the funds.11 For present purposes the relevant part of the decision is Chambers J’s discussion of   s 149(3) of the 1992 Act (emphasis added):

[26]	Section 149 was further amended by s 46 of the Accident Rehabilitation and Compensation Insurance Amendment Act (No 2) 1993. The new subs (3) which was added provided that, notwithstanding subss (1) and (2) of s 149, where any person was receiving compensation under s 80 of the 1982 Act in respect of attendant care (being personal care and mobility assistance necessary for the injured person) at a weekly rate of $350 or more immediately before 1 July 1992, s 80 would continue to apply in respect of that person as if that section had not been repealed and the entitlements in respect of the person could be reassessed from time to time under that section.

[27]	The effect of subs (3) was to preserve existing entitlements for those receiving attendant care compensation at high rates. The 1992 Act provided by regulation for specific levels of attendant care compensation, which levels were, generally speaking, lower than had been paid under s 80 of the 1992 Act. At any time the injured person could elect to switch over to the new regulatory regime: see s 149(5) and (6).

9	Taylor v Taite HC Rotorua M13/00, 23 May 2002 at [28].
10 There was an inter-family dispute as to which member of the family had provided the care during the period covered by the backdated payments and whether the sum should be paid into the estate of a carer who had since died.
11 At [14].

[28]	As at 1 July 1992, Jeremy was not in fact receiving compensation under s 80“at a weekly rate of $350 or more”. But it is common ground that he should have been. The only reason he was not receiving compensation at a weekly rate of more than $350 was that ACC was at that time misapplying the law. Clearly, therefore, since Jeremy should have been receiving compensation at a weekly rate of $350 or more, he continued to be entitled to compensation under s 80 of the 1982 Act. At no time did he or his parents elect to switch to the new regulatory regime. It would never have been in their financial interest so to do.

[15]	As in the High Court appeal Mr Lynskey argues that Taylor v Taite gives weight to the contention that s 149(2) is to be read as covering not only those persons actually receiving compensation before July 1992 but those who would have been entitled to such compensation. Mr Lynskey maintains on the basis of Taylor v Taite, there is now conflicting High Court authority as to the proper interpretation of s 149 and the conflict requires appellate attention and resolution.

[16]	I do not agree with Mr Lynskey’s analysis. As I stated in the November 2019 decision:

[32](f) Where Mr Lynskey would draw support from Taylor v Taite, that decision is to be understood in its particular factual context. As Winkelmann J (as she then was) observed in response to an argument similar to that advanced now on behalf of Mr Larkin, the submission “misconstrues” Chambers J’s point which was simply that the savings provisions in the 1992 Act applied in that case and “it is not a tenable statutory construction to read in the phrase ‘or entitled to receive compensation’”.

[17]	Further, as submitted by Mr Rennie QC for the respondent, to the extent there is any inconsistency between the November 2019 decision and Taylor v Taite, the Court of Appeal has already resolved that conflict in decisions commenting on the scope of s 149.12

[18]	Next, Mr Lynskey submits the applicant’s approach to s 149 is arguably supported by obiter comments of the Court of Appeal in Campbell and Handley v Accident Compensation Corp.13 Campbell and Handley v Accident Compensation Corp concerned the application of s 149 of the 1992 Act to the appellants. Mr Lynskey makes the point that the following important passages in Campbell were not addressed

12	Campbell and Handley v Accident Compensation Corp CA138/03, 29 March 2004; and Bosman v Accident Compensation Corp [2007] NZCA 482.
13	Campbell and Handley v Accident Compensation Corp, above n 12.

in the November 2019 decision and that leave to appeal should be given so that the Court of Appeal is able to determine whether the comments are of assistance to the applicant:

[34]	A  rather  more  difficult  question  relates  to  the  application  of  reg 3(1)(b) where entitlements under s 149 had run on until 30 June 1993 but where no payments under that section were made prior to 30 June 1993. The language used in the Regulation may be thought to assume that in any case to which it applied, payments would in fact have been made prior to 30 June 1993. Such an assumption, however, is unsurprising. Given the time bar provided for by s 63(2), at the time the 1993 Regulations were promulgated (28 June 1993) there would have been, at most, comparatively few claimants who could credibly have claimed an entitlement under s 149 who had not already made claims. Where such claims had been made and an entitlement existed, payments would usually have commenced by 30 June 1993. The situations of the present appellants would have been far removed from the mind of whoever drafted the regulations (as, by 28 June 1993, their claims were absolutely time barred by s 63 of the 1992 Act). So there is, perhaps, scope for an approach to reg 3(1)(b) which is more generous than that contended for by the Corporation.

[35]	Whether reg 3(1)(b) can be construed in favour of the appellants was the subject of some argument before us but essentially only as a contextual issue in relation to our assessment of the primary arguments of counsel which focused on s 149 of the 1992 Act. In those circumstances and given, as well, the question posed by the case stated, we do not express a concluded view whether the two appellants are entitled to rely on reg 3(1)(b) in relation to the periods of time which elapsed between the expiry of their s 149 entitlements and when their applications were first lodged with the Corporation.

[19]	The Court of Appeal’s remarks were made in relation to claims under the 1992 Act and the possible application of the regulations in force when the claims for cover were made.14 As Mr Rennie observed the Court specifically refrained from expressing a concluded view as to whether the claimants could rely on the regulations in their particular circumstances.

[20]	The further practical point is that the regulations had long ceased to have effect when Mr Larkin first sought cover in 2005. The Court of Appeal’s obiter comments cannot be construed as support for a statutory route (to borrow Mr Rennie’s reference) entitling the applicant to claim compensation for the period 1 July 1993 to 31 March 2002. If anything, Campbell and Handley appears to support the District Court and ACC’s findings that s 149(2) requires the claimant to be in actual receipt of payments.

14	The regulations in force at the time were the Accident Rehabilitation and Compensation insurance (Social Rehabilitation — Attendant Care) Regulations 1993.

In the November 2019 decision I referred to the following passage from Campbell and Handley in which the Court of Appeal recognised the “distinct legislative treatment” of those actually receiving payments:

[43] The terminology, and in particular the words “was receiving compensation”, suggest that the amendments apply only in relation to claimants who were actually receiving payments prior to 1 July 1992 at a weekly rate of $350 or more. These sections are of no direct relevance to the present appeals and we have set them out simply to note the language in the amendments (“was receiving compensation”) as compared to the different language  used  in  s 149 as  originally   enacted   (“entitled   to   receive”  and “payments in respect of that person until … ”).

[21]	This proposed point on appeal is not, in my view, seriously arguable.

[22]	Finally, I address Mr Lynskey’s argument that “the omission from the 2001 Act of transitional provisions for entitlements under the 1992 and 1998 Acts was an obvious oversight”. While he stood to be corrected Mr Lynskey submitted “no reference could be found [in the legislation] to any support for any conscious decision to remove access to those entitlements”.15

[23]	In response to the similar arguments Mr Lynskey advanced on appeal to the High Court I stated (footnotes omitted):

[36]	The essence of the injustice Mr Lynskey asserts is that Mr Larkin would not be entitled to any compensation if his interpretation were rejected. In response to ACC’s argument that s 374 and s 149 follow ordinary transitional logic, Mr Lynskey brought the argument back to the particular injustice for Mr Larkin. He challenged ACC to justify Mr Larkin’s receipt of zero compensation as a logical transition. However, when s 149 is considered in the context of the operation of the 1992 Act, which of course Parliament had in mind when it enacted that provision, all those entitled to compensation under the 1982 Act who had not yet made a claim would have been entitled to make a claim under the 1992 Act. If Mr Larkin were entitled to compensation under the 1992 Act, the asserted injustice would fall away.

[37]	Why is Mr Larkin not entitled to compensation under the 1992 Act? The 2001 Act enacted transitional provisions for entitlements under the 1972 and 1982 Acts but not for entitlements under the 1992 and 1998 Acts. It appears likely this was the result of the different policy framework under the 1992 and 1998 Acts. The 1992 Act established an “insurance-based scheme”. Consistent with the insurance-based nature of the scheme, compensation was only payable upon application for cover and for the particular entitlements sought. There was also a 12-month time bar on lodging a claim, although the Act was amended in 1995 to permit late claims if ACC was not prejudiced.

15	At 4.16.

The 1998 Act continued the insurance-based scheme and retained the 12- month time bar for claiming cover. The conscious omission of a transitional provision for entitlements under the 1992 and 1998 Acts is to be seen in that light.

[24]	In response to my conclusions in [36] and [37] (above), Mr Lynskey takes a different view on his reading of the Parliamentary debates. Mr Lynskey continues to argue that failing to transition 1992/1998 Act entitlements “must have been a mistake”.

[25]	In relation to Mr Lynskey’s observation that it would be “an extraordinary step” for the legislature to consciously decide to remove the entitlements of a “severely injured claimant” and that therefore it must have been a mistake, I can do little more than point to the analysis at [37] of the 2019 November decision as to why Mr Larkin was not entitled to compensation under the 1992 Act. Mr Lynskey has advanced no argument to dissuade me from the view that there is “no drafting imperfection of the kind justifying judicial intervention”.16

Disposition

[26]	The applicant has not met the threshold of demonstrating there is a question of law capable of bona fide and serious argument. Accordingly, the application for leave to appeal is dismissed.

Karen Clark J

Solicitors:
John Miller Law, Wellington for Applicant Russell McVeagh, Wellington for Respondent

16	Larkin v Accident Compensation Corporation, above n 1, at [39].