ACC v Vandy (Incapacitated while Unemployed)

Accident Compensation Corporation (ACC) v Dominique Vandy
High Court Wellington November 2010

Ms Vandy, injured her hip in 2003 at the age of 12 when she fell from a horse. After leaving school she entered employment. While in this employment Ms Vandy suffered an aggravation of her earlier injury. The injury incapacitated Ms Vandy from further employment.

ACC declined Ms Vandy’s application for weekly compensation because she was not in employment at the time of injury in 2003 and therefore did not fulfil s. 103 of the act. It was ACC’s belief that for a claimant to be paid weekly compensation under the Accident Compensation Act, they must have been in employment at the time of their original incapacitation.

Decision: Gendall J, stated, that s.100 of the Accident Compensation Act is a cumulative section; For a claimant to receive weekly entitlements they must also be covered by s.103(2) and clause 32 schedule 1 of the Act. s.100 outlines who is entitled under the Act and that they must be incapacitated (“unable to engage in employment”) within the meaning of s.103 (2) of the act (“in which he or she was employed when he or she suffered personal injury”).

In light of these provisions someone may be unemployed but factually incapacitated yet they would not come within the terms of the Act. Gendall J, noted that there was unfairness in this legislation however he noted that s 37 was amended in 1993, and that at this time, including non-earners who were later incapacitated was considered as a policy option but it was not adopted.

Conclusion: Based on the legislation, the judge believed that weekly payments could not be claimed for unless the claimant had been in employment at the time of their incapacitation. The judge stated that in reading the provisions “the meaning of the statutory provisions can be interpreted in only one direction, despite understandable notions of what might be ‘fair’ in an individual case, the remedy if there is one has to be provided by parliament.

Cases Referred to: Giltrap v Accident Compensation Corporation DC Wellington 141/2006, 9 June 2006. Gendall J, affirmed this case stating that the requirements in s100 (10(a) are clearly cumulative. One is that the claimant was incapacitated within the meaning of s. 103(2). The other is eligibility under cl 32.