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High Court of New Zealand Decisions |
Last Updated: 2 January 2018
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IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON
REGISTRY
AP No. 290/91
UNDER the
Accident
Compensation Act
1982
IN THE MATTER of an appeal
pursuant
to s 111 of the Act
BETWEEN THE ACCIDENT
COMPENSATION
CORPORATION
Appellant
AND SARAH JANE
CURTIS
Respondent
AP No.
291/91
UNDER the Accident
Compensation
Act
1982
IN THE MATTER of an appeal pursuant
to s 111 of the
Act
BETWEEN THE ACCIDENT
COMPENSATION
CORPORATION
Appellant
AND ALISTAIR JOHN
McKEE
Respondent
Hearing: 2 March 1993
Counsel: J V B McLinden and F M R
Cook for Appellant
E J Stone for Respondent Curtis
D L Bates for
Respondent McKee
Judgment: 26 May 1993
___________________________________________________________________________
JUDGMENT
OF GREIG
J
___________________________________________________________________________
Each of the respondents in entirely separate incidents was convicted on a charge under the Transport Act 1962 of the offence of causing death by dangerous driving. They were sentenced to imprisonment for one year and two years respectively. Their applications for compensation under the Accident Compensation Act 1982 were rejected by the Corporation, in on case rehabilitation assistance was also refused. Upon review the Corporation decision as to compensation was upheld but rehabilitation assistance was confirmed for both the respondents. Upon appeal to the Accident Compensation Appeal Authority the decision of the Review Officer was reversed and determinations made that the respondents were entitled to compensation though limited in amount as set out in the determinations.
The issue on this appeal by the Corporation to restore the findings of the Review Officer, is the proper meaning and intent of s 92 of the Act which provides that the Corporation may decline in whole or in part rehabilitation assistance or compensation to those suffering injury in the commission of crime if such would, in the opinion of the Corporation, be repugnant to justice. Although that Act has been repealed and replaced by the Accident Rehabilitation and Compensation Insurance Act 1992 somewhat similar provision, dependent upon like wording, is contained in s 84. Although the facts of each case differ in a number of important respects, the issue in ease case is identical and so were properly dealt with together.
Because of the order in which the cases were heard it is convenient to deal first with the case of Curtis and to describe as shortly as possible the facts involved. The short facts are concisely and effectively recited in the decision of the Appeal Authority and I can do no better than to quote those:
“The facts which gave rise to this appeal are that the appellant who is aged 30, and is a housewife by occupation, had suffered serious injuries when she was a passenger in a motor vehicle which was involved in an accident in 1975. As a result of that accident she lost her left arm from the neck, her toes were broken, her legs crushed, her lung punctured, her spleen had to be removed and she suffered extensive scarring to her face. The effects of this accident subsequently led the appellant to over-indulge in both alcohol and drugs. On 5 March 1987 she was driving her car with three women and two men as passengers. The car was being driven at a high speed, estimated to be between 120 to 160 kilometres per hour, when it failed to negotiate a bend in the road. The evidence disclosed that it ploughed through open land turning completely over sideways twice, and ended up against a house over 70 metres from the point at which it had left the road. Two of the men passengers and one woman passenger were killed. Two of the bodies were found near a shed close to the house which the car struck before it came to rest, while the third had been thrown out of the car and over the roof of the shed by the force of the impact. The appellant and one other occupant survived and the appellant was found unconscious on the ground half-way between the point from which the car left the road and the place it came to stop. The appellant has no recollection of the accident and very little memory of events prior to it. She was convicted following a jury trial and was sentenced to one year's imprisonment and was disqualified from driving for two years. An application to the Court of Appeal for leave to appeal against both her conviction and sentence was declined.
As a result of this accident the appellant suffered concussion, multiple abrasions and lacerations to her face, right arm and hip, a fracture of the right arm, and extensive damage to her right knee. She now suffers headaches and from time to time has glass still coming from her face and chest. Her face is scarred and she requires physiotherapy treatment for her injuries, and treatment to ease her tension and pain.”
Mr McLinden, for the Corporation, in an even shorter and more dramatic summary of the incident put it this way:
“A one armed woman driving at an irresponsible speed with a blood count of at least 50% higher than that permitted by law, and with 5 people in the car not surprisingly goes out of control and kills 3 of the people.”
There seems never to have been any question as to her right on rehabilitation assistance. Because of her situation there was no question of earnings related compensation but applications were made for compensation under ss 78 and 79, that is to say for compensation for non-economic loss related to permanent loss and impairment of bodily function, and for other non economic loss including loss of amenities, capacity for enjoyment of life, pain and mental suffering. The Review Officer heard the matter on 4 October 1989 and gave his decision on 20 November 1989. That was, it appears, the first time s 92 had come before a Review Officer for decision or consideration and as the Appeal Authority said, the Review Officer's decision is a careful, sympathetic and fully considered one.
Mr McLinden, in his submissions, described the key features of the Review Officer's legal analysis as being:
The essence of the Review Officer's decision can be extracted from this sentence:
“This sentence [of imprisonment] must be regarded as a measure of that offending when weighed by the justice system. In my view the Corporation was entitled, if not obliged to deny payment of compensation to [the respondent]. To do otherwise would have flown in the face of the justice system's attempts to respond to public opinion in an area where that opinion is very vocal. Consequently I am unable to conclude that the decision of the Corporation was wrong, despite my feelings of admiration and sympathy for [the respondent].”
The appeal to the Accident Compensation Appeal Authority was heard on 7 August 1990 before a full Board comprising A W Middleton DCJ and Messrs B H Blackwood and P J Cartwright. The decision dated 30 November 1990 is a joint decision. The decision of the Review Officer was reversed and an order was made determining that the appellant was entitled to compensation under both ss 78 and 79. The matter was referred back to the Corporation to make an assessment under s 78 but with the proviso that the Corporation must make a deduction in respect of any demonstrable pre-existing related permanent loss or impairment of bodily function as a result of the injuries she suffered in her first accident. The determination under s 79 of the quantum of the compensation was left to the Corporation but the Authority directed that it be half the amount which the Corporation would, but for the appellant's offending, have otherwise considered appropriate.
In reaching its decision the Appeal Authority disagreed with the Review Officer's conclusion that there was any difference in the test as to repugnancy to justice as between rehabilitation or compensation but found that both concepts were to be given equal importance by recognising that, in individual cases, either or both might be refused. It also disagreed with the conclusion that compensation involved an element of personal profit and rejected the submission that a denial of compensation would involve double punishment having regard to the debt paid to society by the imprisonment.
Against a given that the concepts of rehabilitation and compensation are counted of equal importance and that compensation gives partial restoration to the injured person's previous condition, the phrase “repugnant to justice” was construed in accordance with the observations of the Court in Martin v Martin. The question, then, was stated by the Appeal Authority as:
“We must ask ourselves are the facts of this case such that, notwithstanding the primary direction that the appellant is entitled to cover under the Act, we feel that we simply cannot countenance payment of lump sum compensation under sections 78 and 79, or that such payments would amount to injustice so plain and serious that it ought not to be tolerated?”
The Authority then considered the question against the background of its construction of the term “justice” in the framework of the Act. The Authority took account of the primacy of cover for persons suffering personal injury by accident under a no fault principle of compensation and rehabilitation, that being the foundation of the Act. Against that was to be considered the power to decline those rights under s 92 which necessarily imposed a high threshold test for denial and any departure from that to be exercised with extreme caution requiring satisfaction of a very stringent test. To reach its decision the Authority then balanced the principles of the Act, the nature and consequences of the offending and the injured claimant's personal circumstances. The Authority found some seven mitigating circumstances and concluded that the primacy of the provision for rehabilitation and compensation of all persons who suffer personal injury meant that the legislature intended in s 92 to impose a rigorous test allowing very limited scope for departure except in the worst case scenarios of criminal offending. It decided that this was not such a case and thus concluded that compensation and rehabilitation should be granted.
The background facts of the McKee case were that on 7 February 1988 the respondent, who was a Ministry of Transport Traffic Officer, was driving a friend's motor cycle from Hamilton towards Cambridge. Another traffic officer on duty on patrol recorded the respondent travelling at 160 km/h. In attempting to stop the appellant he activated his siren and pursued him but was unable to reach or maintain the speed at which the respondent was accelerating away. At about 9 pm the respondent drove through an intersection in Cambridge, colliding with a Toyota van which had the right of way. The driver and his wife suffered injuries but not serious. The second passenger in the van died. As the Appeal Authority said:
“It is not an understatement to describe it as an appalling incident of grossly reckless driving.”
On 8 July 1988 the respondent pleaded guilty in the District Court to charges of dangerous driving causing death. He was convicted and sentenced to two years' imprisonment. An appeal against the sentence was dismissed. As a result of the accident the respondent suffered injuries which were described as extensive, including a fractured right scapula, a fractured right mid-shaft femur, fractured right radius and ulna, lung contusion and lacerations to the neck and right eye. At the time of the Review Officer's consideration there had been surgery to a leg and arm and further surgery was anticipated. He was still suffering pain in his leg and was unable to place strain on his arm which made heavy work difficult. He lost his job as a traffic officer. There was a further psychological and emotional effect which at least contributed to the final break-up of his marriage. He had no savings or assets but had accumulated debts and faced a claim in respect of the accident.
The Corporation decided to decline his application for compensation and rehabilitation assistance. The respondent sought a review hearing which was conducted by the same Review Officer that dealt with the other case. It was conducted at Waikeria Prison on 23 April 1989. The Review Officer in his decision of 3 May 1989 concluded that the Corporation should give rehabilitation assistance but should not give compensation and upheld that part of the Corporation's decision.
The tenor and reasoning of the decision of the Review Officer was similar in all respects to the other. The key issue was what was describe later by the Appeal Authority as the Review Officer's view of the public revulsion to the possibility in this case of the respondent profiting from the public purse by his crime. In the course of his decision the Review Officer made a finding that most of the respondent's problems arose from the break-up of his marriage and from his imprisonment rather than from the injuries he sustained as a result of the accident.
The appeal before the Accident Compensation Appeal Authority was heard on 29 August 1990, some three weeks after the hearing by the full Board of the Authority in the other case. This was heard by one member of the Appeal Authority and his decision was given on 21 December 1990. It largely followed the terms of the decision in the other case. The Authority, after reciting some seven matters which his counsel had requested be taken into consideration, and balancing the nature of the offending, concluded that it would be “out of character with the compassionate objectives of the legislation to deny the [respondent] total access to the compensation provisions of the Act.” He noted that earnings related compensation can often provide a foundation for rehabilitation particularly in a vocational sense. He decided, therefore, that the respondent should be entitled to cover for earnings related compensation “but only to the extent that any incapacity is due to injuries suffered by him in the accident in question.” He determined and directed that the amount of his relevant earnings should be the amount that was paid to him by way of basic salary at the date of the accident by the exclusion of any allowances or overtime. He directed that the file be returned to the Corporation for assessment of that earnings related compensation and for compensation under ss 78 and 79 but, as with the other case, he determined that the amount should be one-half which, but for the respondent's offending, the Corporation would otherwise have considered appropriate.
Mr McLinden began his submissions with a review of the legislative history of s 92. It began in a recommendation from what was described as a Government Cabinet/Caucus Committee Report made in October 1980 by a committee comprising a number of members of the Cabinet and Backbench Members of Parliament of the Government party at the time. A Bill was introduced in consequence of that Governmental Report on 6 November 1980. Among other things it inserted a new s 138A into the 1974 Act which provided that, in respect of some particular offences, a person convicted and sentenced to a term of imprisonment would have cover but no compensation would be payable in respect of the injury. That Bill was not proceeded with after lengthy hearings by the Labour and Education Committee on the Bill. It was decided in June 1981 that the Bill be held over for reconsideration until the next year. On 16 September 1982 a new Bill was introduced which, after amendment, became the Accident Compensation Act 1982. That Bill included a section similar to s 92 as enacted but providing an alternative to repugnant to justice in the phrase “contrary to equity and good conscience”. That phrase was struck out of the bill as reported from the Labour and Education Committee's hearings.
Although the appellant did not seek to place any great reliance on the legislative history to construe the section, it was submitted that the important points arising were the declared reasons for it, that a specific exception to the Act was created and it contemplated a strict regime to effect its purpose.
Reference was made to a number of documents which it was suggested indicated by the use of other words what was intended by the section. What I think is plain is that the intention was to further a matter of policy not a matter of principle or legal reform. This I think is clearly shown in the introductory speech of the Minister of Labour in introducing the Bill in its original form in 1980, when he said, in relation to the proposed section 138A:
“There is clearly a very strong public feeling that injuries received during, and arising out of, commission of certain crimes should not come under the umbrella of comprehensive entitlement. It is considered that the public should not be called on to compensate the authors of their own misfortune when relatively serious criminal activity is involved.”
That perhaps is reflected in the words of the Review Officer which I have already quoted about the justice system's attempt to respond to vocal public opinion.
The controversy over the introduction of this particular provision in its changing forms serves to point up the need to be sparing in resort to parliamentary debates and proceedings to construe the legislation in the form in which it finally is enacted. That there are occasions when that may be appropriate and helpful is undoubted but these are certainly the exception rather than the rule. In the end, after the debates and the hearings and the various amendments and re-introductions, s 92 was enacted in the form which now has to be construed, using words which Parliament intended with a deliberation and debate, more concentrated and lengthy than is customary.
The wording of s 92 is as follows:
“92. Where a person suffers personal injury by accident in the course of committing any criminal offence, and the injured person is convicted of the offence concerned, and sentenced to a term of imprisonment, cover shall exist but the Corporation may decline, in whole or in part, to give rehabilitation assistance and pay compensation if, in the opinion of the Corporation, it would be repugnant to justice for such rehabilitation assistance to be given and such compensation to be paid.”
It needs to be construed in the context of the Act. Important features of that context are set out in s 26, the purposes and scope of the Act, 27, the declaration that the Act is a code barring the bringing of proceedings where cover exists under the Act, 35, which enjoins the Accident Compensation Corporation on a matter of prime importance to take an active role in the promotion of safety, and 36, which requires the Corporation to place great stress upon rehabilitation. Notice needs to be taken, as well, of the detailed provisions in Parts V, VI and VII for earnings related compensation, other compensation and general compensation provisions. It is that last part that contains s 92 and other specific exceptions to the right to compensation.
In ACC v Broadbelt [1990] 3 NZLR 169 Richardson J, giving the judgment of the Court of Appeal, distinguishes the rehabilitation and compensatory purposes and shows how the Act separates these, but allows an overlap to permit a form of compensation to be paid to provide rehabilitation for which the applicant in the case was not eligible because of his residence outside New Zealand.
Section 92 was an additional exceptional provision added to the Act. It was not a single isolated provision but took its place with other such exceptions, including the right to reduce or postpone or cancel payment of earnings where the injured person was being maintained in a penal institution (s 67), the exclusion of compensation for self-inflicted injuries and suicide (s 90) and the restriction on compensation for persons who are injured and subsequently convicted of murder or manslaughter (s 91). Section 67 gives the Corporation a discretion to reduce, postpone or cancel payments of earnings related compensation only while the person entitled is being maintained by the state in a hospital or prison. Cover under the Act and the entitlement otherwise to compensation remains. In both ss 90 and 91 compensation is denied by the statute but the Corporation has an overriding but limited discretion to pay or apply the compensation.
Section 92 has a number of particular features which bear on its construction and meaning. Cover applies so that the basic right under the Act is preserved, even for the worst criminal. Rehabilitation and compensation or either of these is to be disallowed in some special cases so crime is not an immediate bar and some prisoners who are convicted and sentenced and punished for their crimes, will be entitled to rehabilitation and to compensation Some, however, will not. There is no categorisation of the types of crime or the kinds of sentence or lengths of sentence which qualify or not. All that is required is that there is conviction of a criminal offence and a sentence to a term of imprisonment, no matter how short or how long. Even a prisoner sentenced to life or a very long finite term may still be entitled to rehabilitation and compensation. The application of that test is left to the Corporation and on appeal by the Appeal Authority and the Courts. The test is a simple one in the phrase “repugnant to justice”.
Mr McLinden in his submissions suggests that the object of the section is to deprive people of benefits where the moral culpability of the offender has been so great that the reasonable man would find it repugnant that he should also have benefits either of rehabilitation or compensation paid to him. He suggested that the section and its purpose was conceived in anger and not in compassion and certainly it was conceived as an answer to what was understood to be a public demand that some criminals should not have the benefit of rehabilitation or compensation under the general scheme of the Act. But it can be said that the length of the sentence in itself does not determine the moral culpability. In any event moral culpability is neither easy to define nor to apply.
A test of repugnancy to justice uses words which are not usually found in legislation. They are strong, vivid and forceful. It is not just a matter of inequity or a state of being unjust. It has to be repugnant to justice. That I think is not merely the standard dictionary meaning of repugnancy, connoting contradiction and incompatability, but gives a more forcible meaning to provide for a situation which is striking and immediate. It has to have the same effect as in the law of contract, a certain situation impels the right thinking person to the kind of answer which recognises an implied term in a contract because it is so obvious that it goes without saying (Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227). Thus in the particular circumstances a rational and fully informed bystander, not actuated by vindictiveness or by undue compassion, on being informed of the circumstances and being asked whether rehabilitation and compensation should be granted, would immediately reply, “Of course not.”
Martin v Martin has been cited and quoted from in this context by the Authority. That is a somewhat similar area where the ordinary rule in matrimonial property gives way to circumstances of repugnancy. It is of course a different test in different circumstances, but it indicates not only the usage and the connotation of that phrase but also the standard which has to be applied, and that is a high standard, before the test is met. Although different words are used, in a situation far different than this, namely, the test as to whether further evidence should be admitted on appeal against an award of damages, as expressed Lord Wilberforce in Mulholland v Mitchell [1971] 1 All ER 307 at 313, referred to by Cooke P in McElroy Milne v Commercial Electronics [1993] 1 NZLR 39 at 42, may be quoted as being apposite. That test is that, “it may be expected that courts will allow fresh evidence when to refuse it would affront common sense or a sense of justice.”
In the present case it is not common sense that is mentioned but justice. Justice includes common sense. It is, however, an abstract concept which is indefinable. Here, however, justice must be looked at in terms of the general purposes of the Act which are primarily to provide rehabilitation and compensation. Clearly the test has to be applied in and against all the relevant circumstances of the particular case. Each case must depend upon its own facts. The answer in each case will be a matter of degree. It cannot be that rules will predict for every case what the answer must be. There must be room for a great deal of judgment and discretion. Too high a standard, the worst case scenario, would mean that there would remain a number of cases where ordinary right thinking people would believe, correctly, that a grant of compensation and rehabilitation would be contrary to justice. But even the worst case may be entitled, in the particular circumstances, to rehabilitation if not some compensation. The murderer or the rapist cannot be entirely excluded. The Act does not exclude them unless the particular circumstances reach a state of repugnance to justice.
At the other extreme, a short term of imprisonment for what might be thought of as a minor crime or offence, could not and ought not to disqualify somebody from the payment of compensation. The case of the party to a robbery or burglary without any aggravating features of weapons who gets injured in a car accident in leaving the scene, might qualify for rehabilitation and compensation without it being thought that that was repugnant to justice. On the other hand the rapist whose injuries inflicted by the victim in self defence become infected and cause serious harm might well be disqualified from further consideration, it being repugnant to justice.
The appellant put considerable emphasis on the doctrine or principle of ex turpi causa claiming that this was the philosophy behind the amendment and the addition of s 92. A number of cases bearing on that doctrine were cited including, in chronological order: Marles v Philip Trant & Sons Ltd [1954] 1 QB 29; National Coalboard v England [1954] AC 403; Hardy v Motor Insurers' Bureau [1964] 2 QB 745; Smith v Jenkins [1970] HCA 2; (1970) 44 ALJR 78; Thackwell v Barclays Bank Plc [1986] 1 All ER 676; Euro-Diam Ltd v Bathurst [1990] QB 1; Kirkham v Chief Constable of Greater Manchester [1989] EWCA Civ 3; [1990] 2 WLR 987; Pitts v Hunt [1990] EWCA Civ 17; [1990] 3 WLR 542. I think that this doctrine is of no relevance to the construction or the meaning of s 92. Neither of the respondents here could sue themselves so that it is not a question of some action or cause arising out of wrongdoing. This is a no fault system in which is not a question of bringing actions or suing but an entitlement to compensation for injury suffered by accident.
What is plain in reading these various cases is the controversy that remains as to the proper principle which is to be applied to provide an acceptable test for the wide variety of circumstances. It is apparent that the strictness of the application of a rule or doctrine that those engaged in a joint criminal enterprise or in other illegality should not sue, requires modification and tempering to the particular circumstances. What is proposed by some as a “conscience test”, described by Dillon LJ in Pitts v Hunt at p 563 quoting the statement of Hutchison J in Thackwell at 687:
“That test, [counsel] suggested, involved the court looking at the quality of the illegality relied on by the defendant and all the surrounding circumstances, without fine distinctions, and seeking to answer two questions: first, whether there had been illegality of which the court should take notice and, second, whether in all the circumstances it would be an affront to the public conscience if by affording him the relief sought the court was seen to be indirectly assisting or encouraging the plaintiff in his criminal act.”
In Kirkham's case Lloyd LJ, at p 993, put the point in this way:
“We have to ask ourselves the much more difficult question whether to afford relief in such a case as this, arising, as it does, directly out of a man's suicide, would affront the public conscience, or, as I would prefer to say, shock the ordinary citizen.”
This, then, is the test that seems to be applied, at least in England, to steer a pragmatic course or to achieve a practical balance in what Bingham LJ in Saunders v Edwards [1987] 1 WLR 1116 said at p 1134, as quoted in Pitts v Hunt:
“Where issues of illegality are raised, the courts have (as it seems to me) to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the courts should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct.”
Although these do not use the term “repugnant to justice” the flavour is similar and to that extent we may usefully borrow and apply that test although always remembering that the essential thing is to apply the words of the instant section and not a paraphrase or other similar words.
The question as to whether, as between rehabilitation and compensation, there is a different test is, I think, easily answered. The section plainly provides one test, repugnancy to justice, applicable to rehabilitation and compensation or to either. There is no difference in the test between these. There is, indeed, no difference in the importance of rehabilitation and compensation under the Act. Although in Broadbelt's case Richardson J talked about the primary purpose of rehabilitation that was not, I think, to suggest that compensation became secondary; they are equally important. But it will be easier, I think, to find a repugnancy in the case of compensation than in rehabilitation. Rehabilitation, as Mr McLinden correctly put it, is to restore a person to a useful life so that disability is reduced or avoided. This is the role of the samaritan. It is an extension of medical or surgical aid to save life and health and then proceed to restore or to rehabilitate, as far as possible, the injured person. There is a social benefit in this in that a person who has an ability to lead an effective useful life is no longer or may be less of a burden on the state. It is apparent that compensation can include aspects of rehabilitation or provide a state in which rehabilitation may more easily be achieved. Earnings related compensation may allow an injured person the time and the opportunity to achieve rehabilitation or better or quicker rehabilitation without the worry of reliance on social welfare benefits or of limited means. Because, however, there is a monetary element in compensation it involves a direct benefit or receipt so it is easier for there to be little, if any, affront in allowing a person to be tended by medical or para-medical assistance and recuperation, whereas the right thinking person still has or may have some reluctance to see actual monetary payment being made to that same person.
Compensation payment is not a profit and is not intended to be a full indemnity. It is never and was never intended to take the place of common law damages which, in principle, is intended to restore the injured person, as far as money can, to the position they were in before the wrong was done to them. It is correctly said that accident compensation is a partial indemnity, a partial restoration, in which various items or amounts are payable. That is not diminished by the fact that there are a number of compensation payments which will indemnify or repay the full amount. Clearly the lump sum compensation payments for pain and suffering and loss of amenities under ss 78 and 79 with their upper limits are no more than a contribution toward the harm and loss suffered.
In applying the test of repugnancy to justice, it is necessary to take into account the relevant circumstances of the particular case. That will clearly include the nature and seriousness of the crime and the results of it. It is of course the criminality or the culpability in crime of the applicant that is important rather than the results which have occurred. The victim and the consequences to that victim are now generally recognised as being a relevant aspect of criminal proceedings and particularly sentencing. These matters, however, can have little if any significance in the decision under this Act as to whether a person is entitled to rehabilitation or compensation. That death has resulted is clearly an important aspect. Indeed, it is an essential aspect in the cases we are considering here. That is the essential ingredient of the crime. But it cannot, in such a case as this, make a difference that one event resulted in one death and the other resulted in three deaths. That is not to say that a person who deliberately sets out to kill a number of people will be equally to be considered as one who deliberately kills one only. The number of deaths in the former is an aspect of the criminality.
The personal circumstances of the injured person cannot be ignored and they must be taken into account. Just as much as those will have some consideration as mitigating features in the sentencing procedure, so the must be taken into account on this exercise. The mitigating features will or may have reduced the sentence, thus making the crime seem less serious. There may be further actions or conduct thereafter and both during and after imprisonment which have a bearing on the justice of the case and the acceptance or not of the person's qualification for rehabilitation and compensation.
Care has to be taken that the personal circumstances do not provide a double credit so that having once reduced the sentence and thus reduced the seriousness of the crime they are again taken into account to reduce the repugnancy of the particular case. Questions of remorse or continuing anxiety because of the crime or the results of it should not be take into account. It cannot be right to take into account in favour of the applicant the fact that they had a bad time in prison or suffered and continued to suffer because of that. Any more than account should be taken of the fact that they remain sorry or regretful for the crime or have continuing anxiety or stress because of the death which resulted. Any of those would be to give credit to the crime and the criminality which could not be right.
Reference was made in Curtis's case in the Appeal Authority decision to the question of contributory negligence. That can never be relevant in any strict sense if only because the applicant could never sue for the injuries that they received. Apart from that a question of contributory negligence, failure to take care of themselves on the part of the victims by agreeing to be driven by a driver who is under the influence of alcohol, and no more was suggested here, could not be weighed in favour of the criminal driver.
There is also reference in the decision to the question whether the conduct was truly criminal. That is a given in any case, not only has there been a crime committed but it has been such that prison was the appropriate sentence. There is or remains, perhaps subconsciously, a feeling that careless or reckless driving, whether influenced by alcohol or not, is not always or on every occasion a true crime. It is not always committed by persons who are otherwise recognised as criminals. It may involve conduct which is not unusual and which on occasions result in accidents causing no more than superficial damage to the motor vehicle in a minor collision. Under the law, as set out in the Transport Act, the actions of the respondents constituted a crime and they have been convicted and sentenced for that crime. The question is not whether it is truly criminal but how criminal the particular circumstances are. That question can be asked sensibly in cases of rape, murder and aggravated burglary as well as in driving offences.
In Curtis's case the positive factors which weighed with the Appeal Authority were as follows:
Underlying all of this is, of course, the acceptance that the respondent was entitled to rehabilitation assistance. It was only compensation, and indeed that compensation payable under ss 78 and 79, which remained in issue.
The Authority used language which put the test at a somewhat higher degree than I think is appropriate — they referred to the very limited scope for departure, the worst case scenario and the question of the need to feel abhorrence — that may, however, be compared to the approval by the Authority of the statement by A P Blair in Accident Compensation in New Zealand (2nd ed) at p 118 when he observed that repugnant to justice “would seem to relate only to the criminal whose conduct has been so heinous as to produce in the mind of the arbitrator a strong antipathy to the idea of awarding compensatory payments.” That seems to contain a partial contradiction in itself. The first part seems to limit compensation or the exclusive compensation to the very worst crime but then to qualify that by using what is a rather weak phrase of strong antipathy which is hardly equal to repugnant or repugnancy. Perhaps that just shows the difficulty of trying to use other language to describe the test.
As I have already noted a number of the matters which were referred to and taken into account by the Authority appear to me to be irrelevant to the personal circumstances which ought to be taken into account. Little seems to be said about the actual results and the future consequences of the particular accident in light of the purposes of compensation under ss 78 and 79. That is not a question of the burden of guilt but the suffering that she continues to have or had from the injuries sustained in the second accident.
In the end it remains a question of degree and judgment in the circumstances of the case. Although the reasoning I have followed is not identical with that of the Appeal Authority it may ultimately be more a question of emphasis and approach than of substance and legal interpretation the question remains one of reconciling the primary remedial and restorative aspects of a code for compensation for personal injury by accident whenever and however caused with a recognised social and community outlook that criminals should bear the consequences of their own acts expressed as a statutory exception with a high threshold. In my judgment the Appeal Authority, with respect, came to the right decision on Curtis. That was not a case in which payment of modest compensation under s 79 would be repugnant to justice.
In McKee's case the matters which appear to have been taken into account, or at least were put forward as being relevant for consideration, include:
A number of these things are relevant as aspects of personal circumstances which require to be taken into account. Clearly, by its sentence, this was a more serious crime. It was criminal conduct on the part of a law officer who continued after siren and other steps were taken to stop him. The explanation of marital crisis is difficult to accept and, indeed, was rejected by the Review Officer who saw and heard the witnesses. Questions of the burden of guilt and anguish and the shame of the result and the sentence are all irrelevant as matters which are to be taken into account. There should not certainly be any compensation or lump sum which is intended to assuage the suffering caused to him by his criminal act.
In the end I agree, with respect, with the Appeal Authority that this too is not a case where the circumstances speak so strongly as to cross the threshold into repugnancy to justice denying the respondent all compensation. The order and determination made limits payment to the result of the injuries he suffered in the accident and not the consequences of the crime or other stress affecting his health arising from events and mental factors existing before the accident and arising afterwards apart from his physical injuries. That seems to me to accord with the primary purpose of the accident scheme without an affront to a properly grounded concept of justice
There was a cross-appeal against the limitation of the compensation. That must fail. The section itself provides a determination to decline in whole or in part. There can be no reason why the partial allowance should not be fixed on a fractional basis but leaving the corporation to make the decision as to the appropriate amount.
The formal order and determination in each case is that the appeal and cross-appeal are dismissed.
I make no order as to costs.
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URL: http://www.nzlii.org/nz/cases/NZHC/1993/1003.html