Accident Compensation Act 1982
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Accident Compensation Act 1982
Public Act |
1982 No 181 |
|
Date of assent |
17 December 1982 |
|
Contents
An Act to consolidate and amend the Accident Compensation Act 1972 and its amendments
Be it enacted by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:
1 Short Title and commencement
(1)
This Act may be cited as the Accident Compensation Act 1982.
(2)
This Act shall come into force on the 1st day of April 1983.
2 Interpretation
(1)
In this Act, unless the context otherwise requires,—
“Accident Compensation Corporation” or “Corporation” means the Accident Compensation Corporation continued under section 4 of this Act:
“Airman” means an earner who is employed as the captain or an officer or member of the crew of an aircraft by the owner or charterer thereof; and includes any person employed to do work on an aircraft which will involve his being on the aircraft while it is airborne:
“Appeal Authority” or “Authority” means the Appeal Authority continued under section 103 of this Act:
“Artificial limb or aid” means any artificial limb, hand, foot, denture, or eye, any crutches or spectacles, or any other artificial aid:
“Business” has the same meaning as in section 2 of the Income Tax Act 1976:
“Commissioner of Inland Revenue” means the Commissioner of Inland Revenue appointed under the Inland Revenue Department Act 1974; and includes any person for the time being authorised (whether by delegation by him or otherwise) to exercise or perform any of his powers or functions:
“Compensation” means any compensation or benefit paid or provided by the Corporation under sections 59 to 82 of this Act; and includes any amount payable by an employer or the Corporation under section 57 of this Act:
“Continental shelf” means the continental shelf as defined in section 2 of the Continental Shelf Act 1964:
“Cover”, in relation to any person, means the entitlement which he, or his dependants, would have to rehabilitation assistance and compensation under this Act if he suffers personal injury by accident or dies as a result of the injury so suffered:
“The Crown” means Her Majesty the Queen acting in right of her Government in New Zealand:
“Decision”, in relation to the Corporation, or a Review Officer, or the Appeal Authority, or a committee appointed by the Corporation, includes any determination, requirement, assessment, order, or direction made or given by it or him; but does not include any decision of the Corporation in respect of a recommendation to the Minister in relation to any proposed enactment or Order in Council or to the necessity for any enactment or Order in Council:
“Dependant”, in relation to any person, means any other person whom he had a legal duty to support in whole or in part at the time when the dependency has to be determined; and includes any other person whom he might then reasonably regard or have regarded himself as having a moral duty to support in whole or in part, and whom he was then supporting in whole or in part; and includes a child of his born after his death; and “dependent”
, “totally dependent”
, and “partially dependent”
have corresponding meanings:
“Deputy Managing Director” means the Deputy Managing Director of the Corporation appointed under section 12 of this Act:
“Domestic earnings”, in relation to any employer, means all earnings as an employee which are paid by that employer, in respect of or in relation to the employment of any employee or employees, where—
(a)
That employer is the occupier or one of the occupiers of a dwellinghouse or other premises used exclusively for residential purposes; and
(b)
The employment is for the performance of work in or about the dwellinghouse or premises or garden or grounds appurtenant thereto; and
(c)
The employment is not in relation to any business carried on by that employer:
“Earner” means an employee or a self-employed person and also has the extended meaning assigned to it under section 69 of this Act:
“Earnings” means earnings as determined under section 52 of this Act:
“Earnings related compensation” means compensation payable under any of the provisions of sections 57, and 59 to 65 of this Act; and includes compensation paid under section 88 of this Act and allocated to the above provisions:
“Employee” means any person who has engaged to work or works in New Zealand under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical or professional work, or otherwise, and any person who has engaged to work or works outside New Zealand under such a contract in circumstances in which he has cover under any of the provisions of sections 30, 31, and 32 of this Act; and also has the extended meaning assigned to it under subsections (2), (3), (4), (5), and (6) of this section and section 69 of this Act; and “employee of a Government department” includes any overseas representative within the meaning of section 2 of the Foreign Affairs Act 1943:
“Employer” means a person, within or outside New Zealand, who—
(a)
Pays or is liable to pay to any person (being an employee within the meaning of this subsection); or
(b)
In a case where any such last-mentioned person had engaged to work under a contract mentioned in the definition in this subsection of the expression “employee” would, if the person who had so engaged had commenced to work under the contract, be liable to pay—
any earnings as an employee as defined in section 52 of this Act, whether on his own account, or as an agent, or as a trustee, or as an assignee within the meaning of the Insolvency Act 1967 of the estate of a bankrupt, or as the liquidator or receiver of a company that is in liquidation or receivership; and includes the administrator of a deceased employer; and also includes the Crown; and also has the extended meaning assigned to it by subsections (2), (3), (4), and (5) of this section:
“Employment” includes self-employment:
“Financial year” means—
(a)
In relation to the Corporation, the period of 12 months, or such other period as the Corporation may in special circumstances determine, fixed by the Corporation, with the approval of the Minister of Finance, as its financial year; and
(b)
In relation to a self-employed person, whether or not he is also an employee, the year or other period ending with the date of each annual balance of his accounts for the purpose of furnishing a return of income under the Income Tax Act 1976:
“Government department” means any department or instrument or agent of the Executive Government of New Zealand:
“Incapacitated” means suffering from total or partial incapacity; and “incapacity” has a corresponding meaning:
“Inland Revenue Acts” has the meaning specified in section 2 of the Inland Revenue Department Act 1974:
“International organisation” means an organisation of which 2 or more States or the Governments thereof are members:
“Lease” means a lease within the meaning of section 2 of the Income Tax Act 1976:
“Managing Director” means the Managing Director of the Corporation appointed under section 11 of this Act:
“Medical referee” means a medical referee appointed under section 16 of this Act:
“Member of the Armed Forces of New Zealand” means a member of any of the armed forces raised and maintained under section 4 of the Defence Act 1971 and comprising the armed forces specified in section 5 of that Act; and includes a member of any cadet force raised and maintained under section 57 of that Act:
“Minister” means the Minister of Labour:
“Motor vehicle” means a motor vehicle within the meaning of section 2 of the Transport Act 1962:
“New Zealand” means—
(a)
The North Island, the South Island, Stewart Island, the Chatham Islands, and all other land territories, islands, and islets lying between the 162nd degree of east longitude and the 173rd degree of west longitude and between the 33rd and 53rd parallels of south latitude; and
(b)
Those islands situated in the South Pacific Ocean lying between the 177th and 180th degrees of west longitude and between the 29th and 32nd parallels of south latitude, commonly known as the Kermadec Group; and
(c)
Those parts of the internal waters of New Zealand (as defined by section 4 of the Territorial Sea and Exclusive Economic Zone Act 1977) that are adjacent to the aforementioned land territories, islands, and islets; and
(d)
Those parts of the territorial sea of New Zealand (as defined by section 3 of the Territorial Sea and Exclusive Economic Zone Act 1977) that are adjacent to or surround the aforementioned land territories, islands, or islets; and
(e)
Any installation or drilling rig (whether permanent or temporary) while constructed, erected, placed, or used in, on, or above those parts of the continental shelf (as defined in section 2 of the Continental Shelf Act 1964) that are appurtenant to the aforementioned land territories, islands, and islets, for the purpose of the exploration of the continental shelf, or of the exploitation of the mineral or other natural non-living resources of that continental shelf; and in this paragraph the terms “installation” and “drilling rig” include any ship, floating platform, aircraft, or other device that is for the time being in, on, or above the continental shelf and being used in connection with any such installation or drilling rig:
“New Zealand airman” means an airman who is ordinarily resident in New Zealand:
“New Zealand seaman” means a seaman who is ordinarily resident in New Zealand:
“Owner”, in relation to a motor vehicle, has the meaning specified in section 2 of the Transport Act 1962:
“Owner of land” means an owner of land within the meaning of section 2 of the Income Tax Act 1976:
“Paid”, in relation to earnings and to a person by whom earnings are paid, includes allowed, given, or granted, and also includes credited or dealt with in the interest of or on behalf of a person; and “pay”
, “payment”
, and “payable”
have corresponding meanings; and “received”
, “receives”
, and “receivable”
, and “derived”
and “derives”
shall be read accordingly in relation to earnings and to a person by whom earnings are received or are receivable or are derived:
“Paid employment” means employment engaged in or carried on for pecuniary gain or profit; and, in relation to employment as an employee, includes employment during any period of leave on pay, whether holiday leave, annual leave, sick leave, study leave, or leave for any other purpose, and whether on full pay or reduced pay, but does not include employment during any period of leave without pay:
“Part-time member of the Armed Forces of New Zealand” means a member of the Armed Forces of New Zealand who is a member of—
(a)
The Royal New Zealand Naval Reserve; or
(b)
The Royal New Zealand Naval Volunteer Reserve; or
(c)
The Naval Reserves; or
(d)
The Territorial Force of the New Zealand Army; or
(e)
The Army Reserve; or
(f)
The Territorial Air Force; or
(g)
The Air Force Reserve; or
(h)
Any cadet force raised and maintained under section 57 of the Defence Act 1971:
“Patient” means any person who has suffered personal injury by accident and who, for the purpose of receiving surgical or medical treatment to assist his recovery or rehabilitation, is in any hospital as defined in section 88 of the Social Security Act 1964 or in any hospital as defined in section 2 of the Mental Health Act 1969; but does not include any person who is being maintained in any such hospital for other purposes:
“Period of short term incapacity”, in relation to any person who suffers personal injury by accident, means the period commencing on the 7th day after the date of the accident and ending with the 28th day of the period, or with the person’s sooner complete recovery from incapacity due to the accident, or with his death:
“Person”, in relation to any employer, includes a company or other body corporate, whether incorporated in New Zealand or elsewhere, and a public body; and also includes an unincorporated body of persons, a partnership, an association of persons carrying on a joint undertaking, and the Crown, and a Government department:
“Personal injury by accident”—
(a)
Includes—
(i)
The physical and mental consequences of any such injury or of the accident:
(ii)
Medical, surgical, dental, or first aid misadventure:
(iii)
Incapacity resulting from an occupational disease or industrial deafness to the extent that cover extends in respect of the disease or industrial deafness under sections 28 and 29 of this Act:
(iv)
Actual bodily harm (including pregnancy and mental or nervous shock) arising by any act or omission of any other person which is within the description of any of the offences specified in sections 128, 132, and 201 of the Crimes Act 1961, irrespective of whether or not any person is charged with the offence and notwithstanding that the offender was legally incapable of forming a criminal intent:
(b)
Except as provided in the last preceding paragraph, does not include—
(i)
Damage to the body or mind caused by a cardio-vascular or cerebro-vascular episode unless the episode is the result of effort, strain, or stress that is abnormal, excessive, or unusual for the person suffering it, and the effort, strain, or stress arises out of and in the course of the employment of that person:
(ii)
Damage to the body or mind caused exclusively by disease, infection, or the ageing process:
“Registered and licensed motor vehicle” means a motor vehicle that is for the time being registered and licensed under Part II of the Transport Act 1962:
“Relevant earnings”, in relation to any person, means his relevant earnings as determined under section 53 of this Act, or as the case may be, under section 62 or section 63 of this Act:
“Review Officer” means a person appointed by the Corporation, pursuant to section 102 of this Act, to be a Review Officer:
“Road” means a road as defined in section 2(1) of the Transport Act 1962; and includes a motorway:
“Seaman” means an earner who is employed as a master, officer, seaman, apprentice, or in any seagoing capacity whatever on board a ship by the owner or charterer thereof:
“Self-employed person”—
(a)
Means a person (other than a person to whom paragraph (c) of this definition applies) who, otherwise than as an employee and whether alone or together with another person or other persons, carries on a business in New Zealand (whether or not that business is also carried on outside New Zealand); and
(b)
Includes a person (other than a person to whom paragraph (c) of this definition applies) who, having a vested beneficial share or interest in income arising from a business carried on in New Zealand (whether or not that business is also carried on outside New Zealand), applies his personal exertions, otherwise than as an employee, in the carrying on of that business in New Zealand, notwithstanding that the business may be carried on by or subject to the control of an administrator or a trustee or any other person acting in a representative or fiduciary capacity, and notwithstanding that he himself may be such an administrator, trustee, or other person; but—
(c)
Does not include a person who carries on a business merely as an administrator or trustee or in any other representative or fiduciary capacity, and who does not apply his personal exertions in the carrying on of that business otherwise than in his capacity as administrator or trustee or in any such other representative or fiduciary capacity:
Provided that, in relation to the giving of notices under this Act to a self-employed person, references to a self-employed person include the administrator of the self-employed person and the assignee within the meaning of the Insolvency Act 1967 of the estate of the self-employed person; and
(d)
Has also the extended meaning assigned to it under section 69 of this Act:
“Ship” means every description of vessel (including barges, lighters, and like vessels) used in navigation, however propelled:
“Spectacles” does not include contact lenses:
“Trade plates” has the meaning specified in section 2 of the Transport Act 1962:
“Use”, in relation to a motor vehicle, includes driving, drawing, or propelling by means of another vehicle, and permitting to be on any road or any other place; and “to use” has a corresponding meaning.
(2)
For the purposes of this Act a salesman, canvasser, collector, insurance agent, or other person who derives commission in the course of his occupation (being an occupation carried on in New Zealand, or in circumstances in which he has cover under section 30 of this Act) from a person with whom he has not entered into a contract of service (whether or not he also derives a retainer or any other amount whatsoever in cash or otherwise), in this section referred to as a “field agent”
, shall be deemed to be an employee employed by the person from whom the commission is derived, and that last-mentioned person shall, to the extent that the commission (and any retainer or other amount whatsoever in cash or otherwise) is derived from him by the field agent, be deemed to be the employer of that field agent:
Provided that this subsection shall not apply—
(a)
To a field agent, being a company or other body corporate, or being an unincorporated body of persons, firm, or institution; or
(b)
To a field agent who derives commission from activities which customarily form part of a trade or business regularly carried on by him in or from a fixed place of business, not being residential premises and not being a place in which a trade or business is carried on by a person from whom the field agent derives commission.
(3)
For the purposes of this Act any person, being an individual, who does work or renders services (being work or services rendered in New Zealand, or in circumstances in which he has cover under section 30 of this Act, whether or not that work or those services are required to be, or are, done or rendered personally by that person) under a contract (not being a contract of service or apprenticeship) or arrangement which is wholly or substantially for the supply of labour in or in connection with the construction, erection, or extension of buildings (including the erection of prefabricated or pre-cut parts of buildings), being work or services of any nature that customarily can form part of the work or services of a carpenter under a building contract shall, to the extent that the work is done or those services are rendered, be deemed to be the employee of the person under the contract or arrangement with whom that work is done or those services are rendered, and that last-mentioned person shall, to the extent that the work is done or those services are rendered, be deemed to be the employer of the first-mentioned person.
(4)
For the purposes of this Act, a director of a company who is entitled to receive any fee, allowance, bonus, gratuity, commission, emolument, or other remuneration of any kind (whether in cash or otherwise) in respect of his services in his capacity as a director (being services rendered in New Zealand, or in circumstances in which he has cover under section 30 of this Act) shall, in relation to those services, be deemed to be an employee of that company; and that company shall, to the extent of those services, be deemed to be the employer of that director.
(5)
For the purposes of this Act, where any person, being a Chairman or member of a local authority or statutory Board within the meaning of the Fees and Travelling Allowances Act 1951, or a Chairman or member of any committee or other board, council, or body to whom remuneration may be paid pursuant to any other Act, is entitled to receive any payment (whether in cash or otherwise) in respect of or in relation to his services as such Chairman or member, as the case may be (being services rendered in New Zealand, or in circumstances in which he has cover in respect of personal injury by accident under section 30 of this Act), that person shall, in relation to those services, be deemed to be an employee of that authority, board, committee, council, or body, as the case may be; and that authority, board, committee, council, or body shall, to the extent of those services, be deemed to be his employer.
(6)
It is hereby declared that for the purposes of this Act every person whose salary is paid pursuant to the Civil List Act 1979 and every Judge and every District Court Judge, and the Solicitor-General, the Controller and Auditor-General, and any Ombudsman is, as such, an employee employed by the Crown.
(7)
Section 20 of the Holidays Act 1981 shall have no effect in relation to the application of this Act.
(8)
For the purposes of this Act, an employee, while on leave in paid employment, shall be deemed to work in that employment to the same extent as if he were working in that employment but not on leave:
Provided that, for the purposes of this Act, personal injury by accident suffered by an employee while on leave in paid employment shall not be deemed to arise in the course of his employment, unless it would have so arisen apart from the foregoing provisions of this subsection.
(9)
So far as personal injury by accident suffered by any person or persons having cover in respect thereof necessitates treatment of the injured person or persons by a dentist, unless the context otherwise requires, any reference in this Act to—
(a)
A medical practitioner includes a dentist:
(b)
A medical certificate includes a certificate by a dentist:
(c)
A medical committee includes a committee that comprises or includes dentists:
(d)
A medical referee includes a dental referee:
(e)
The term “medical”
, in relation to any treatment, attention, attendance, assistance, examination, condition, report, evidence, officers, problems, benefits, and matters, includes dental.
Compare: 1972, No. 43, ss. 2, 105b; 1973, No. 112, s. 2; 1973, No. 113, ss. 1(2), 3; 1974, No. 71, s. 2(1), (6); 1975, No. 136, s. 2; 1978, No. 36, s. 2; 1979, No. 125, s. 18(2); 1980, No. 73, ss. 2(2), 8(2), 9(2)
3 Act to bind the Crown
This Act shall bind the Crown.
Compare: 1972, No. 43, s. 3
Part I The Accident Compensation Corporation
Constitution
4 Accident Compensation Corporation
(1)
There shall continue to be a body corporate called the Accident Compensation Corporation which shall be the same body corporate as that existing under the same name immediately prior to the commencement of this Act.
(2)
The Corporation shall consist of the following members who together shall act as a Board of Directors and be responsible for policy:
(a)
Not more than 6 members to be appointed by the Governor-General on the recommendation of the Minister:
(b)
The Managing Director of the Corporation:
(c)
The General Manager of the State Insurance Office or such officer of the State Insurance Office as he may nominate.
(3)
One of the appointed members shall be so appointed as Chairman of the Corporation, and one shall be so appointed as Deputy Chairman of the Corporation.
(4)
Every appointed member of the Corporation shall hold office for a term not exceeding 3 years, and may from time to time be reappointed:
Provided that every appointed member, unless he sooner vacates his office under subsection (5) or subsection (6) of this section, shall continue in office until his successor comes into office, notwithstanding that his term of office may have expired.
(5)
Any appointed member may at any time resign from office by written notice to the Minister.
(6)
Any appointed member may at any time be removed from office by the Governor-General for disability, bankruptcy, neglect of duty, or misconduct proved to the satisfaction of the Governor-General.
(7)
If any appointed member dies or resigns or is removed from office, the vacancy shall, as soon as practicable, be filled by the appointment of another member; and, if the term of the vacating member has not expired at the time of the appointment, the member appointed to fill the vacancy shall hold office by virtue of that appointment for the residue of the term of the vacating member.
(8)
The powers of the Corporation shall not be affected by any vacancy in its membership.
(9)
The Corporation shall be a body corporate with perpetual succession and a common seal and, subject to this Act, is capable of acquiring, holding, and disposing of real and personal property, and of suing and being sued, and of doing and suffering all other acts and things that bodies corporate may do and suffer.
Compare: 1972, No. 43, ss. 6 to 9; 1980, No. 73, ss. 2(1), 3, 4, 5
5 Meetings of Corporation
(1)
Meetings of the Corporation shall be held at such times and places as the Corporation or the Chairman or the Deputy Chairman from time to time appoints.
(2)
The Chairman shall preside at each meeting of the Corporation. In the event of the absence of the Chairman from any meeting of the Corporation the Deputy Chairman shall preside at that meeting and, if he is also absent, the meeting shall be presided over by a member appointed by the members present.
(3)
At all meetings of the Corporation the quorum necessary for the transaction of business shall be 4 members.
(4)
At any meeting of the Corporation the person presiding at the meeting shall, in the event of an equality of votes, have a casting vote.
(5)
Subject to this Act, the Corporation may regulate its procedure in such manner as it thinks fit.
Compare: 1972, No, 43, s. 13; 1979, No. 73, s. 6
6 Execution of documents on behalf of Corporation
(1)
The Corporation may from time to time, in writing under its common seal, authorise any member or members or officer or officers of the Corporation to execute any deeds, instruments, or other documents on behalf of the Corporation, and may at any time in the same manner revoke any such authority.
(2)
Any authority under this section to any officer or officers of the Corporation may be given to—
(a)
A specified officer or officers; or
(b)
An officer or officers of a specified class; or
(c)
The holder or holders for the time being of a specified office or of an office or offices of a specified class.
(3)
Every person purporting to execute any document on behalf of the Corporation pursuant to this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with an authority under this section.
Functions and Powers
7 Recommendations as to levies and compensation
(1)
The Corporation shall in each financial year review, and make recommendations to the Minister regarding the adjustments (if any) that should be made in relation to,—
(a)
The rates of levies to be paid by employers and self-employed persons and by owners of motor vehicles and the scales and classifications in relation to those levies:
(b)
The imposing of levies under section 49 of this Act on drivers of motor vehicles, and, if levies are so imposed, the rate of those levies and the scales and classifications in relation thereto:
(c)
The respective prescribed amounts for the purposes of sections 39, 59, 60, 61, 62, and 63 of this Act.
(2)
In making its recommendations as to levies, the Corporation shall make recommendations designed to ensure that the levies are sufficient to meet its liabilities over such period or periods as it may determine, and shall, in its annual report to the Minister, specify the period or periods it has determined and state whether or not, in its opinion, the levies being credited are sufficient for this purpose.
(3)
Where any such recommendations relate to the rates of levies on owners of motor vehicles or to scales or classifications in relation to those levies the Minister shall consult the Minister of Transport regarding them.
(4)
In making its recommendations in respect of the respective prescribed amount for the purposes of sections 39, 59, 60, 61, 62, and 63 of this Act, the Corporation shall provide that any adjustment it recommends shall, after taking into account past relevant adjustments, reflect any movement in earnings that has occurred since its last recommendations.
(5)
The Corporation shall base its assessment as to the extent of any movement in those earnings on its own financial records, whether of earnings on which levies are paid, or of the amount derived from levies in respect of earners, or of the average weekly rate of earnings related compensation paid to earners, or of a combination of all or any of them, but the provisions of this subsection shall not prevent the Corporation from having regard to other relevant data and indices. In selecting the basis to be adopted, the Corporation shall have regard to—
(a)
The importance of adopting a basis which will reflect the movement of earnings by earners having cover under this Act; and
(b)
The desirability of completing its review and making its recommendations as soon as practicable in the financial year in which it is required to make recommendations.
(6)
The Corporation shall, at intervals not exceeding 5 years, continue to arrange for the Government Actuary or another independent actuary approved by him to make a report to the Minister regarding the matters on which the Corporation is required to make recommendations to the Minister under this section. The actuary shall send to the Corporation a copy of his report to the Minister. On receipt of any such copy of a report, the Corporation shall, as soon as practicable, advise the Minister of any comments it may wish to make thereon.
Compare: 1972, No. 43, s. 15; 1975, No. 136, ss. 3, 6; 1978, No. 36, s. 8(5), (6)(a)
8 Administrative functions and powers
(1)
The Corporation shall have such functions and powers in relation to the administration of this Act as are conferred upon it by this Act, and shall also have such further powers, not inconsistent with this Act, as are reasonably necessary for the effective performance of its functions.
(2)
For the purposes of carrying out the duties and functions imposed on the Corporation by this Act, the Corporation or the Managing Director or a Review Officer shall have the same power to summon witnesses, administer oaths, and hear evidence as are conferred upon Commissions of Inquiry by the Commissions of Inquiry Act 1908, and the provisions of that Act, except sections 2, 10, 11, and 12, shall apply accordingly.
(3)
Any investigation or inquiry which the Corporation is empowered to conduct under this Act may be conducted by the Corporation or the Managing Director or an officer of the Corporation or any other person specially appointed by the Corporation or the Managing Director to conduct the investigation or inquiry and to report thereon to the Corporation or the Managing Director, and for the purposes of any such investigation or inquiry the powers and authority conferred on the Corporation or the Managing Director by subsection (2) of this section shall attach to and may be exercised by the officer, or other person so appointed.
(4)
In the discharge of its functions, the Corporation shall—
(a)
Co-operate with Government departments and bodies and persons interested in the discharge of those functions, including departments involved in the recording and processing of statistics of accidents and occupational diseases; and
(b)
As appropriate seek to achieve co-ordination between Government departments and other bodies and persons in matters related to the discharge of its functions, whether by making contributions to their expenses or otherwise; and
(c)
Where practicable, before making any significant changes in the manner in which it discharges its functions, consult any Government department which it considers may be affected, directly or indirectly, by those changes.
(5)
No member, officer, or employee of the Corporation shall be personally liable for any liability of the Corporation, or for any act done or omitted by the Corporation or by any member, officer, or employee thereof in good faith in pursuance or intended pursuance of the functions or powers of the Corporation.
Compare: 1972, No. 43, ss. 16, 19(2), (3)
9 Financial functions and powers
(1)
The Corporation shall have such functions and powers in relation to financial matters as are conferred upon it by this Act, and shall also have such further powers, not inconsistent with this Act, as are reasonably necessary for the effective performance of its functions.
(2)
Without limiting the generality of subsection (1) of this section, it is hereby declared that the functions and powers of the Corporation shall include—
(a)
Payment of all compensation, costs, and rehabilitation assistance in accordance with this Act:
(b)
Contributions towards the expenses of Government departments and other bodies which and persons who assist the Corporation in the discharge of its functions:
(c)
The purchase, taking on lease or hire, or acquisition of such land, buildings, plant, and equipment, and the construction and alteration of such buildings, as in the opinion of the Corporation are necessary for the performance of its functions:
Provided that no piece of land or building of a value in excess of $50,000 may be so purchased or acquired, and no building of a value in excess of $50,000 may be so constructed, without the approval of the Minister of Finance:
(d)
The sale, transfer, lease, hire, or other disposition of any of its real or personal property:
Provided that no piece of land or building of a value in excess of $50,000 may be sold, transferred, or disposed of without the consent of the Minister of Finance.
(3)
Any money belonging to the Corporation may from time to time be invested—
(a)
In New Zealand Government securities; or
(b)
On deposit in any bank or banks approved by the Minister of Finance, or in the Post Office Savings Bank; or
(c)
In any manner, or in any securities, that may from time to time be authorised by the Minister of Finance.
(4)
The Corporation may from time to time open at any bank or banks approved for the purpose by the Minister of Finance, or at any branch or agency of any such bank, such accounts (including imprest and subsidiary accounts) as it considers necessary or desirable for the conduct of its business.
(5)
Every account opened under subsection (4) of this section shall be operated upon by cheque or other instrument (not being a promissory note or bill) signed by such person or persons as may from time to time be authorised in that behalf by the Corporation.
(6)
With the prior consent of the Minister of Finance, the Corporation may from time to time borrow money (whether by way of overdraft or otherwise) and mortgage or charge any of its property or rights.
(7)
In any financial year the Corporation may expend for purposes not authorised by this or any other Act any sum or sums not amounting in the aggregate to more than $5,000.
Compare: 1972, No. 43, ss. 17, 19(1), 30, 35, 36(1), 38
10 Corporation to implement policy of Government
(1)
In the exercise of its functions and powers, the Corporation shall give effect to the policy of the Government in relation to those functions and powers as communicated to it from time to time in writing by the Minister.
(2)
A copy of every such communication shall be laid before Parliament as soon as practicable after it has been made by the Minister.
Compare: 1972, No. 43, s. 20
Staff, Agents, etc.
11 Managing Director
(1)
The Corporation shall appoint as an officer of the Corporation a Managing Director who shall be the chief executive of the Corporation and shall be responsible to it for the efficient and economical administration of its functions and the supervision of its officers and employees.
(2)
Subject to the proviso to section 13(1) of this Act, the Corporation may delegate all its powers and functions to the Managing Director, other than those set out in section 7 of this Act:
Provided that the foregoing provisions of this subsection shall not prevent the exercise of any power or function by the Corporation.
Compare: 1972, No. 43, s. 20a; 1980, No. 73, s. 8
12 Deputy Managing Director
(1)
The Corporation shall appoint as an officer of the Corporation a Deputy Managing Director.
(2)
On the occurrence from any cause of a vacancy in the office of the Managing Director (whether by reason of death, resignation, or otherwise), and so long as that vacancy continues, the Deputy Managing Director shall have and may exercise all the powers, duties, and functions of the Managing Director.
(3)
The Deputy Managing Director shall have and may exercise all the powers, duties, and functions of the Managing Director in case of illness, absence, or other temporary incapacity of the Managing Director, and shall also (notwithstanding that no such temporary incapacity exists) act in all matters in respect of which he is authorised by the Managing Director so to act.
(4)
Every such authorisation shall be in writing under the hand of the Managing Director, and may be either general or in respect of any special matters.
(5)
The fact that the Deputy Managing Director exercises any power, duty, or function of the Managing Director, or does any act for the Managing Director as aforesaid, shall be sufficient evidence of his authority to do so, and no person shall be concerned to inquire whether or not any occasion has arisen requiring or authorising him to do so, or be affected by notice that no such occasion has arisen.
Compare: 1972, No. 43, s. 20b; 1980, No. 73, s. 8
13 Officers and employees
(1)
The Corporation may from time to time appoint such officers and employees, including acting or temporary or casual officers and employees, as it thinks necessary for the efficient exercise of its functions and powers, and may at any time remove any officer or employee from his office or employment:
Provided that the Corporation may delegate to the Managing Director its powers to appoint and remove any class or classes of officers and employees, other than the appointment or removal of the Managing Director or the Deputy Managing Director.
(2)
The Minister may from time to time, by notice in writing to the Corporation, specify senior positions on the staff of the Corporation as special positions for salary purposes.
(3)
Each holder of any such special position shall be paid such salary and allowances as the Minister may for the time being approve.
(4)
The salaries payable under this section to the Managing Director and the Deputy Managing Director shall be paid from the Consolidated Account out of money appropriated by Parliament for the purpose:
Provided that any money paid from the Consolidated Account as aforesaid shall be repaid to that Account by the Corporation.
(5)
Subject to section 15 of this Act, other officers and employees of the Corporation appointed under this section shall be paid such salaries and allowances as the Corporation from time to time determines.
(6)
Subject to section 15 of this Act, officers and employees of the Corporation shall be employed on such terms and conditions of employment as the Corporation from time to time determines.
(7)
Any notice, determination, or approval under this section shall take effect on such date (whether the date thereof or any earlier or later date) as may be specified therein. If no date is so specified the notice, determination, or approval shall take effect on the date thereof.
Compare: 1972, No. 43, s. 21; 1980, No. 73, s. 10
14 Provision of superannuation for officers and employees
The Corporation may subsidise or contribute to the National Provident Fund or any other fund or scheme established with the approval of the Minister of Finance for the purpose of providing superannuation or retiring allowances for its officers and employees.
Compare: 1972, No. 43, s. 22; 1980, No. 73, s. 11
15 Staff not in service of Crown
(1)
No person shall be deemed to be employed in the Government service for the purpose of the Government Superannuation Fund Act 1956, or in the State services for the purposes of the State Services Act 1962 by reason only of his being in the employment of the Corporation.
(2)
Notwithstanding subsection (1) of this section, the State Services Conditions of Employment Act 1977 shall, with any necessary modifications and subject to this section, apply to the remuneration and conditions of employment of employees of the Corporation in the same manner as they apply to the remuneration and conditions of employment of employees in the State services.
(3)
For the purposes of the application of the State Services Conditions of Employment Act 1977—
(a)
The Government Service Tribunal shall have jurisdiction in relation to the employees of the Corporation:
(b)
Nothing in the Industrial Relations Act 1973, nor in its subsequent amendments, shall apply to the Corporation or employees of the Corporation.
Compare: 1972, No. 43, s. 24
16 Appointment of consultants, etc.
(1)
The Corporation may from time to time appoint consultants, referees, specialists, and committees, including medical referees, specialists, and committees, to advise it in relation to the exercise of its functions and powers and to exercise such functions and powers as may be delegated to such persons or committees under section 18 of this Act.
(2)
Subject to any regulations made under this Act, the Corporation may—
(a)
Pay to any such persons or members of committees so appointed such remuneration by way of fees, salary, allowances, and such travelling allowances and expenses, as it thinks fit:
(b)
Contribute towards the remuneration, travelling allowances, and expenses of any such persons or members of committees, whose employers provide services for the Corporation.
Compare: 1972, No. 43, ss. 23, 28
17 Appointment of agents
(1)
The Corporation may from time to time appoint agents for the purpose of enabling it to discharge its functions and powers and may at any time revoke any such appointment.
(2)
The Corporation shall, as soon as practicable, cause every appointment by it of an agent and every revocation of such appointment to be notified in the Gazette.
(3)
The Corporation shall in addition cause a list of its agents to be published annually in the Gazette.
(4)
The Corporation shall pay its agents for services rendered by them, fees and commission or either at such rates as the parties shall agree or, failing such agreement, at such rate as the Controller and Auditor-General shall determine, and may separately reimburse its agents for expenses reasonably incurred in rendering services for the Corporation.
Compare: 1972, No. 43, ss. 25, 27
18 Delegations
(1)
The Corporation may from time to time, in writing, either generally or particularly, delegate to such agent or agents of the Corporation as it thinks fit all or any of its functions and powers relating to the collection of levies, the refund of amounts of levies or penalties or both paid in excess, the remission of penalties, the refund of penalties remitted, the handling and payment of claims, and inquiries, investigations, reports, and returns in connection therewith, including power for any such agent to delegate to its officers and employees and other persons any functions and powers delegated to it under this subsection.
(2)
The Corporation may from time to time, in writing, either generally or particularly, delegate to such consultants, referees, specialists, and committees, including medical referees, specialists, and committees appointed by it under section 16 of this Act, as it thinks fit all or any of its functions and powers in relation to the examination of persons who suffer personal injury by accident, and of persons who suffer from occupational diseases, being persons who have cover under this Act, and the retraining, rehabilitation, education, and placement in employment of those persons.
(3)
The Corporation may from time to time, in writing, either generally or particularly, delegate all or any of its functions and powers to any officer or officers or employee or employees appointed by it under section 13 of this Act, but any such delegation shall not include the functions and powers of the Managing Director as a member of the Corporation, or the functions and powers set out in section 7 of this Act, or the powers of appointment or removal of the Managing Director or the Deputy Managing Director.
(4)
Subject to any instructions given in that behalf by the Corporation, the Managing Director may from time to time, with the prior approval and in accordance with the policy of the Corporation, delegate to any other officer or employee of the Corporation any of his functions or powers, including powers delegated to him under section 11(2) of this Act, but not including his functions and powers as a member of the Corporation nor the power of delegation conferred on him by this subsection.
(5)
Every delegation under this section shall be revocable at will, and no such delegation shall prevent the exercise of any function or power by the Corporation or Managing Director, as the case may be.
Compare: 1972, No. 43, s. 29
Financial Provisions
19 Sources and application of funds
(1)
For the purposes of this Act the Corporation shall derive its funds from the following sources—
(a)
From levies payable by employers and self-employed persons pursuant to section 38 of this Act:
(b)
From levies payable by owners of motor vehicles and drivers of motor vehicles, pursuant to sections 47 and 49 of this Act:
(c)
From money appropriated by Parliament for the purpose.
(2)
For the purposes of this Act the Corporation shall apply its funds so derived in the following manner—
(a)
In the case of levies paid by employers and self-employed persons pursuant to section 38 of this Act, in paying all compensation payable and the costs of all rehabilitation assistance given to earners (not being earners to whom paragraph (b) of this subsection applies) in accordance with the provisions of this Act, together with an appropriate proportion of the costs incurred by the Corporation in carrying out all functions and powers conferred upon it by this Act:
(b)
In the case of levies paid by owners and drivers of motor vehicles pursuant to sections 47 and 49 of this Act, in paying all compensation payable and the costs of all rehabilitation assistance given to persons (including earners) who suffer personal injury by accident caused by or through or in connection with the use of a motor vehicle in accordance with the provisions of this Act, together with an appropriate proportion of the costs incurred by the Corporation in carrying out all functions and powers conferred upon it by this Act:
(c)
In the case of money appropriated by Parliament for the purpose, in paying all compensation payable and the costs of all rehabilitation assistance given to all other persons in accordance with this Act, together with an appropriate proportion of the costs incurred by the Corporation in carrying out all functions and powers conferred upon it by this Act.
(3)
The Corporation shall, in preparing the financial statements referred to in section 25 of this Act, specify with particularity the source and application of the funds.
(4)
All money held by the Corporation at the date of commencement of this Act in the accounts known as the Earners’ Compensation Fund, the Motor Vehicle Compensation Fund, the Accident Compensation Corporation’s General Fund, the Active Service Compensation Fund, and the Supplementary Fund shall be applied by the Corporation for the purposes of this Act.
20 Loans and grants to Corporation
(1)
The Minister of Finance may from time to time, out of money appropriated by Parliament for the purpose, advance money to the Corporation by way of loan or grant.
(2)
The Minister of Finance may from time to time, on behalf of the Crown, give in respect of any advances made to the Corporation by any other person any guarantee, indemnity, or security pursuant to section 86 of the Public Finance Act 1977.
(3)
Every such guarantee, indemnity, or security shall be given, and every such advance by way of loan shall be made, on and subject to such terms and conditions as the Minister of Finance thinks fit.
Compare: 1972, No. 43, s. 37; 1977, No. 65, s. 160
21 Fines
It is hereby declared that the Corporation shall be a local authority for the purposes of section 103 of the Public Finance Act 1977.
Compare: 1972, No. 43, s. 39; 1977, No. 65, s. 160
22 Exemption from taxation
The Corporation shall be exempt from land tax and income tax.
Compare: 1972, No. 43, s. 42(1)
23 Fees and expenses in connection with investigation or inquiry
Notwithstanding anything in the Commissions of Inquiry Act 1908, the Corporation may pay any fees or expenses incurred in connection with any investigation or inquiry which it conducts or causes to be conducted.
Compare: 1972, No. 43, s. 41
24 Remuneration and travelling expenses
(1)
The Corporation is hereby declared to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.
(2)
There shall be paid to the members of the Corporation (other than the Managing Director) remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and that Act shall apply accordingly as if the members of the Corporation were members of a statutory Board within the meaning of that Act.
Compare: 1972, No. 43, s. 40
25 Accounts and audit
(1)
The Corporation shall keep full and correct accounts of all money received and expended by it, and the accounts shall be audited by the Audit Office, which for that purpose shall have and may exercise all such powers as it has under the Public Finance Act 1977 in respect of public money and stores and persons dealing therewith.
(2)
The Corporation shall, as soon as practicable after the end of every financial year, prepare statements as to the source and application of funds and such other statements of account as are necessary to show fully the Corporation’s financial position and the financial results of its operations during that year.
Compare: 1972, No. 43, s. 34
Part II Purposes and Scope of Act
26 Purposes and scope of Act
(1)
The purposes of this Act shall be—
(a)
To promote safety, including occupational health:
(b)
To promote the rehabilitation of persons who suffer personal injury by accident:
(c)
To make provision for the compensation of persons who suffer personal injury by accident and certain dependants of those persons where death results from the injury.
(2)
Subject to this section,—
(a)
All persons who suffer personal injury by accident in New Zealand; and
(b)
To the extent specified in sections 30, 31, and 32 of this Act, all persons who suffer personal injury by accident outside New Zealand,—
shall have cover under this Act if the accident occurred on or after the 1st day of April 1983.
Compare: 1972, No. 43, s. 4; 1973, No. 113, s. 4
27 Act to be a code
(1)
Subject to this section, where any person suffers personal injury by accident in New Zealand or dies as a result of personal injury so suffered, or where any person suffers outside New Zealand personal injury by accident in respect of which he has cover under this Act or dies as a result of personal injury so suffered, no proceedings for damages arising directly or indirectly out of the injury or death shall be brought in any Court in New Zealand independently of this Act, whether by that person or any other person, and whether under any rule of law or any enactment.
(2)
Nothing in this section shall affect—
(a)
Any action which lies in accordance with section 86 of this Act; or
(b)
Any action for damages by the injured person or his administrator or any other person for breach of a contract of insurance; or
(c)
Any proceedings for damages arising out of personal injury by accident or death resulting therefrom, if the accident occurred before the 1st day of April 1983.
(3)
Subject to this Act, the Corporation shall have exclusive jurisdiction to determine whether or not any person has suffered personal injury by accident in the circumstances specified in section 26(2) of this Act or has died as a result of personal injury so suffered, and its decisions shall be conclusive.
(4)
Where, in any proceedings before a Court, a question arises as to whether or not any person has suffered personal injury by accident in the circumstances specified in section 26(2) of this Act, or has died as a result of personal injury so suffered, the Court shall refer the question to the Corporation for determination.
(5)
The Corporation may, on the application of any person who is a party to any proceedings or contemplated proceedings before a Court, determine any such question.
Compare: 1972, No. 43, s. 5; 1973, No. 113, s. 5
28 Compensation for diseases arising out of employment
(1)
If a person’s total or partial incapacity or death results from any disease, and the disease is or was due to the nature of any employment in which the person was employed as an earner during a period that ended on or after the 1st day of April 1974, cover shall exist as if the disease were a personal injury by accident arising out of and in the course of his employment, and all the provisions of this Act shall apply accordingly subject, however, to this section.
(2)
For the purpose of calculating the entitlement to earnings related compensation (if any) in a claim for compensation under this section, the date of the commencement of the incapacity or, if there is more than one period of incapacity, the date of the commencement of each period of incapacity of the person (or the date of his death if there has been no previous period of incapacity) shall be treated as the date of the happening of the accident.
(3)
For all the other purposes of this Act, the date of the commencement of the incapacity or, if there is more than one period of incapacity, the date of the commencement of each period of incapacity of the earner (or the date of his death if there has been no previous period of incapacity) shall be treated as the date of the happening of the accident:
Provided that, where more than one period of incapacity occurs in the employment of the same employer, only the date of commencement of the first period of incapacity with that employer shall be treated, for the purposes of section 57 of this Act, as the date of the happening of the accident.
(4)
If any person contracts any disease in respect of which he would be entitled to a miner’s benefit under the Social Security Act 1964, he shall not be entitled to receive any earnings related compensation under this Act in respect of that disease for any period for which he receives the miner’s benefit, or to receive a miner’s benefit for any period for which he receives any earnings related compensation under this Act.
(5)
Nothing in this section shall affect the rights of a person under any of the provisions of this Act in respect of a disease if the disease is personal injury by accident within the meaning of this Act.
Compare: 1972, No. 43, s. 67
29 Compensation for industrial deafness
(1)
Subject to this section, where, on or after the 1st day of April 1974, an earner has been working in an occupation in which he has been exposed to a particular hazard of contracting deafness through the intensity and duration of his exposure to noise, and subsequently he suffers from deafness of a permanent nature, he shall, subject to the extent of any assessment made by the Corporation pursuant to this section, be deemed to have suffered “industrial deafness”
within the meaning of this section.
(2)
In making its assessment of the extent (if any) to which a person has suffered industrial deafness in terms of this section, the Corporation shall, in the light of the medical and other evidence available to it, have regard to and make allowance for the following:
(a)
Any demonstrable pre-existing deafness:
(b)
Deafness which is due to some other origin:
(c)
Deafness which would normally have resulted from the ageing process.
(3)
Where a person suffers from industrial deafness, he shall be deemed to have suffered personal injury by accident (and if he is then engaged in any employment) arising out of and in the course of his employment and happening on the date on which he makes a claim in respect thereof under this Act or the date on which he last leaves an occupation in which there is a particular hazard of contracting deafness, whichever is the later.
(4)
Where compensation has been paid or is payable under the Workers’ Compensation Act 1956 to any person for any degree of industrial deafness, that degree of deafness in that person shall not be “industrial deafness”
within the meaning of this section.
Compare: 1972, No. 43, s. 68
30 New Zealand earners overseas
(1)
Where an earner leaves New Zealand in the course of his employment, then his cover as an earner shall, from the time that he left New Zealand, extend to personal injury by accident that happens outside New Zealand within 12 months from the date on which he last left New Zealand, if,—
(a)
In the case of an employee, he intends to be absent from New Zealand only temporarily, and exclusively or principally for the purposes of his employment in New Zealand, and while he remains outside New Zealand he continues to derive earnings from that employment:
(b)
In the case of a self-employed person, he intends to be absent from New Zealand only temporarily, and exclusively or principally for the purposes of any business in relation to which he is such a self-employed person.
(2)
Where an employee leaves New Zealand in the course of his employment, his cover shall extend to personal injury by accident that happens outside New Zealand until the expiration of the period or periods (if any) approved by the Corporation under subsection (5) of this section,—
(a)
If he is an employee of the Crown, or of a Government department, or of a person who carries on a business or an undertaking conducted in and controlled from New Zealand, or of any other person who carries on a business or an undertaking in New Zealand and to whom the Corporation has (by notice in the Gazette) declared that this paragraph shall apply; and
(b)
So long as, within the period for which the Corporation approves cover outside New Zealand, the services in respect of which that extension of cover has been approved remain wholly subject to and at the discretion and under the control of the Crown, or of a Government department, or of the said person:
Provided that in no case shall the cover of the employee be extended by reason of this section, beyond the period during which he is or is deemed to be an employee.
(3)
Subject to any regulations made under this Act, the Corporation may, on the application of any employer or employee, and subject to such conditions as the Corporation may impose, extend the application of subsection (2) of this section to—
(a)
Any person who is an employee of the Crown, or of a Government department, or of another person to whom subsection (2)(a) of this section applies, if that employee, either before or after the commencement of this Act, has been appointed or engaged outside New Zealand, whether or not he is posted to a position outside New Zealand, as an employee of the Crown, or of a Government department, or of another person to whom subsection (2)(a) of this section applies, if, on the date on which his employment commences, he would have had cover under this Act or the Accident Compensation Act 1972 if he had been such an employee within New Zealand:
(b)
Any class of such employees.
(4)
If any question arises as to whether a business or an undertaking is, for the purposes of this section, conducted in and controlled from New Zealand, that question shall be determined by the Corporation.
(5)
The period or periods to be approved by the Corporation for the purposes of subsections (2) and (3) of this section shall not exceed 4 years in any case:
Provided that, in the case of any employee or class of employees, the Corporation, having regard to all the circumstances of the case, including the conditions governing the appointment and the service overseas, may, in its discretion, approve any period longer than 4 years, and may enter into any arrangement with the employer to govern the conditions in which cover shall extend to the employee or employees while overseas in that employment.
(6)
For the purpose of determining the earnings by reference to which levies will be payable and compensation will be paid in respect of any employee or class of employees to whom or to which an application under subsections (2) and
(3)
of this section relates, the Corporation may, by written notice to the employer, and, where appropriate, the employee, exclude therefrom so much of any such employee’s earnings that will be earned outside New Zealand as relates to special expenditure which is incurred in the overseas appointment and would not apply to any appointment within New Zealand.
(7)
Where a person suffers personal injury by accident outside New Zealand, or dies as a result of personal injury so suffered, and (in accordance with this section or section 31 or section 32 of this Act) the person has cover, the provisions of this Act, except where otherwise provided, shall apply as if the accident had occurred in New Zealand.
Compare: 1972. No. 43, s. 60; 1973, No. 113, s. 19
31 Seamen and airmen
(1)
Every New Zealand seaman who suffers personal injury by accident outside New Zealand shall have cover, in accordance with this section while he is engaged or employed on—
(a)
Any New Zealand ship as defined in section 2 of the Shipping and Seamen Act 1952:
(b)
Any ship that is owned by, or that is on charter to, any corporation, company, firm, or person that has its or his principal office or place of business in New Zealand:
Provided that this paragraph shall not apply in any case where the original articles of agreement with the crew were entered into in some place other than New Zealand or (not being articles of agreement first entered into in New Zealand) were reopened in New Zealand upon their expiry:
(c)
Any ship which is owned by, or on charter to, the Crown in respect of the Government of New Zealand:
(d)
Any ship where the crew or part of the crew are New Zealand seamen, and the articles of agreement in respect of those New Zealand seamen were first entered into in New Zealand.
(2)
Notwithstanding subsection (1)(b) of this section, every New Zealand seaman who is engaged in New Zealand by, or employed from New Zealand by, any corporation, company, or person on any other Commonwealth ship, as defined in section 2 of the Shipping and Seaman Act 1952, where the articles of agreement with the crew were first entered into in some place other than New Zealand, shall have cover while the ship is within the limits for a home-trade ship as defined in section 2 of that Act.
(3)
Every New Zealand airman who suffers personal injury by accident outside New Zealand shall have cover, in accordance with this section while he is engaged or employed as such by the Crown in respect of the Government of New Zealand or by a corporation or company that is incorporated in New Zealand, or by a person who is ordinarily resident in New Zealand, or while he is engaged or employed as the captain or an officer or member of the crew of an aircraft that, at the time of the accident, is being operated or flown between points wholly within New Zealand.
(4)
Except as provided in this section, no person shall be entitled to be paid earnings related compensation under this Act in respect of work in paid employment as a seaman or airman, whether within New Zealand or elsewhere.
(5)
Nothing in this section shall restrict—
(a)
Sections 32 and 69 of this Act; or
(b)
The cover to which any person may have under section 30 of this Act—
(i)
Otherwise than in respect of work in paid employment as a seaman or airman; or
(ii)
During any period for which his cover is deemed to have continued under section 69 of this Act.
Compare: 1972, No. 43, s. 61; 1973, No. 113, s. 20
32 Members of Armed Forces of New Zealand
(1)
Subject to this section it is hereby declared that for the purposes of this Act members of the Armed Forces of New Zealand are, as such, employees employed by the Crown and that this Act shall apply accordingly, except that—
(a)
Section 35 of this Act shall not apply to service in the Armed Forces of New Zealand:
(b)
No levy shall be payable under Part IV of this Act on the earnings of any member of the Armed Forces of New Zealand, as such a member, derived in respect of any period while he is serving in a war or emergency:
(c)
While members of the Armed Forces of New Zealand are serving in a war or emergency (whether in New Zealand or elsewhere) their entitlement, or in the event of death the entitlement of their dependants, to compensation under this Act shall be determined in accordance with subsections (2), (3), and (4) of this section and not otherwise:
(d)
Members of the Armed Forces of New Zealand serving outside New Zealand, otherwise than in a war or emergency, shall have cover as earners in respect of personal injury by accident outside New Zealand.
(2)
Where a War Pensions Board or a War Pensions Appeal Board established under the War Pensions Act 1954 determines that a pension is payable under Part II of that Act in respect of the disablement or death of a person who is or has been a member of the Armed Forces of New Zealand and that the disablement or the death, as the case may be, occurred during, or is attributable to, or was aggravated by, service in a war or emergency, being service on or after the 1st day of April 1974,—
(a)
Compensation under this Act as determined by the Corporation shall be payable and section 69 of this Act shall apply, in a case where the pension is payable in respect of any disablement, as if that disablement were personal injury by accident happening at the commencement of the period for which the pension is payable in respect of that disablement, and, in a case where the pension is payable in respect of death, as if the death resulted from personal injury by accident happening at the time of death:
Provided that if, in a case where the pension is payable in respect of death, a pension (being a pension to which the foregoing provisions of this subsection relate) has become payable in respect of any period prior to the death by reason of the disablement of the deceased person, the Corporation may determine that the death resulted from personal injury by accident happening at such time prior to the death (not being earlier than the commencement of the period for which the pension in respect of disablement was payable) as appears most appropriate, having regard to all the relevant circumstances, including the extent (if any) to which the death was attributable to any disablement in respect of which that pension was payable and the time as at which that pension commenced to be payable in respect of any disablement to which the death was attributable:
Provided also that, in any case to which this paragraph applies, no compensation shall be payable under sections 73, 75, 76, 77, 78, 79, 80(3), and 81 of this Act:
(b)
In making any determination of the compensation payable under this subsection, the Corporation may, notwithstanding section 91 of the War Pensions Act 1954, have regard to any pension or allowance awarded under Part II of that Act (other than any pension or allowance awarded, pursuant to section 19 of that Act, under sections 20, 21, 22, 23, 32(1), and 48 of that Act, to a member of the Armed Forces of New Zealand or in the event of his death to his or her surviving spouse or a person who is deemed to be or regarded as his or her spouse or surviving spouse under section 76 or section 77 of that Act), but in all other respects any such determination shall be made in accordance with this Act.
(3)
Where subsection (2) of this section applies, rehabilitation assistance determined by the Corporation shall, where necessary, be given as if the disablement were incapacity resulting from personal injury by accident.
(4)
Where any dependant of a member of the Armed Forces whose death occurred during or is attributable to service in a war or emergency, being service on or after the 1st day of April 1974, is not entitled to a pension on the grounds set out in sections 34 and 37 of the War Pensions Act 1954, the Corporation may, notwithstanding the provisions of this section, determine the entitlement of that dependant to compensation in accordance with sections 65, 70, and 82 of this Act.
(5)
Where a person has (whether before or after the commencement of this Act) been granted a disablement pension under any of the provisions of Parts II, IV, and V of the War Pensions Act 1954 in respect of the loss of, or the permanent loss of use of, one of any paired organs, and after the 1st day of April 1974 that person suffers the loss of, or the permanent loss of, the corresponding organ and the subsequent loss or impairment of the efficiency of that corresponding organ is, under section 17(4) of the War Pensions Act 1954, held to be attributable to his service, no compensation shall be payable under sections 73, 75, 76, 77, 78, 79, 80(3), and 81 of this Act in respect of that subsequent loss or impairment.
(6)
Where a part-time member of the Armed Forces of New Zealand for the time being, as such a member, otherwise than in a war or emergency, performs duties or serves in a camp, ship, aircraft, or other establishment or place used by those Armed Forces, or would be required to do so if he were not absent therefrom (whether with or without leave), or is going to or from any place of parade, exercise, training, or duty, and in consequence thereof incurs any diminution in the amount of the earnings which he would otherwise have received—
(a)
The Secretary of Defence shall, on the written application of the part-time member certifying the amount of the diminution he has incurred, pay a levy in accordance with Part IV of this Act out of money appropriated by Parliament for the purpose as if the amount of that diminution had been earnings of the part-time member:
Provided that, if the Secretary of Defence has reason to doubt the correctness of the amount so certified, he shall satisfy himself as to the amount of the diminution (if any) before paying a levy in respect thereof:
(b)
Where a part-time member has so applied, the amount of earnings related compensation which may become payable to him under sections 59, 61, 62, and 63 of this Act, and to his widow, children, and dependants under section 65 of this Act, shall be determined as if the amount of that diminution or the appropriate proportion thereof were earnings of the part-time member during the period or periods in which he performed or would have performed those duties or served in those ways.
(7)
If any question arises as to whether or not any member of the Armed Forces of New Zealand was serving in a war or emergency for the purposes of any provision of this Act, other than subsection (2) of this section, that question shall be referred to and decided by the Minister in Charge of War Pensions.
Compare: 1972, No. 43, s. 63; 1973, No. 113, s. 22; 1975, No. 136, s. 6
33 Persons travelling between places in New Zealand
Where any person who has cover, not being a seaman or airman in the course of his employment as such, embarks in New Zealand on a ship or aircraft or other means of conveyance by sea or air to travel from one place in New Zealand to another place in New Zealand, or to return to his place of embarkation without disembarking at any other place, but in either case does not go beyond a limit of 300 nautical miles from any point or points in New Zealand, that person shall, for the purposes of this Act, be deemed to have remained in New Zealand.
Compare: 1972, No. 43, s. 105a; 1973, No. 113, s. 41; 1978, No. 36, s. 9(1)
34 Cover for persons not ordinarily resident in New Zealand
(1)
Any person who is not ordinarily resident in New Zealand shall not have cover while he is on board the ship or aircraft or other means of conveyance—
(a)
Used by him in the course of coming to New Zealand; or
(b)
On which he entered and is accommodated or carried in the course of his visiting New Zealand; or
(c)
On which he has embarked in the course of leaving New Zealand.
(2)
A person shall, for the purposes of this section, be deemed to be on board a ship or aircraft or other means of conveyance while he is in the act of embarking thereon or disembarking therefrom.
Compare: 1972, No. 43, s. 102c; 1973, No. 113, s. 37; 1978, No. 36, s. 7
Part III Safety and Rehabilitation
35 Corporation to promote general safety
(1)
It shall be a matter of prime importance for the Corporation to take an active and co-ordinating role in the promotion of safety in all the different areas where accidents can occur in New Zealand.
(2)
In so promoting safety the Corporation shall be concerned to—
(a)
Avoid human suffering; and
(b)
Prevent wastage of manpower and so assist efficiency and productivity.
(3)
The Corporation shall establish close and harmonious working relationships with industry, commerce, Government departments, local authorities, and other bodies and organisations in promoting safety and preventing personal injury by accident, and for this purpose shall develop a safety programme, and may appoint a committee under section 16 of this Act.
(4)
The functions of the Corporation in relation to the promotion of safety shall include—
(a)
Stimulating and maintaining interest in safety and the prevention of personal injury by accident:
(b)
Publishing and disseminating safety literature and information:
(c)
Sponsoring, assisting, and conducting safety campaigns, exhibitions, and courses:
(d)
Sponsoring, supporting, and fostering organisations and groups concerned with safety and the prevention of personal injury by accident:
(e)
Researching into causes, incidence, costs, and methods of prevention of personal injury by accident:
(f)
Determining the requirements in respect of, and providing or arranging for provision to be made for, the adequate recording of statistical information concerning personal injury by accident:
(g)
Seeking continuously for new ways to reduce the number and severity of accidents and personal injuries in all fields.
(5)
The Corporation (in consultation with the Standards Council or any other appropriate authority) may consider and, if it thinks fit, support or recommend legislation, regulations, bylaws, and codes of practice calculated to promote safety and to prevent personal injury by accident.
(6)
The Corporation may consider the extent to which safety may be promoted and personal injury by accident prevented, by fiscal and other measures in relation to training in safety, the cost of safety equipment, and similar matters, and may make such recommendations as it considers desirable through the Minister to the appropriate authorities on such matters.
(7)
The Corporation may make recommendations as to alterations of statutory responsibilities and reallocation of functions, as between Government departments, local authorities, and other bodies, in relation to the promotion of safety and the prevention of personal injury by accident. Any such recommendations may be made—
(a)
To the Government departments, local authorities, and other bodies concerned; or
(b)
Through the Minister to the appropriate authorities.
Compare: 1972, No. 43, ss. 43, 44; 1973, No. 113, s. 14
36 Corporation to promote rehabilitation
(1)
The Corporation shall place great stress upon rehabilitation and shall take all practicable steps to promote a well co-ordinated and vigorous programme for the medical and vocational rehabilitation of persons who have cover and who become incapacitated as a result of personal injury by accident and are for the time being in New Zealand.
(2)
The rehabilitation programme in relation to those persons shall have as its objectives—
(a)
Their restoration as speedily as possible to the fullest physical, mental, and social fitness of which they are capable, having regard to their incapacity; and
(b)
Where applicable, their restoration to the fullest vocational and economic usefulness of which they are capable; and
(c)
Where applicable, their reinstatement or placement in employment.
(3)
Notwithstanding subsection (1) of this section, where an earner suffers personal injury by accident outside New Zealand and has cover in respect of the injury, the Corporation, after having regard to all the circumstances, may, in its discretion, make provision for the rehabilitation outside New Zealand of that person to such extent and on such terms and conditions as it thinks fit.
Compare: 1972, No. 43, s. 48
37 Functions of Corporation in relation to promotion of rehabilitation
(1)
In the discharge of its functions in relation to rehabilitation the Corporation shall—
(a)
Establish close and harmonious working relationships with Government departments, Hospital Boards, and other bodies and organisations concerned with the rehabilitation of incapacitated persons, and with the professions of medicine and dentistry and occupations auxiliary to those professions:
(b)
Co-operate with and use the services provided by Government departments, Hospital Boards, and other bodies, organisations, and professions to the maximum extent possible:
(c)
Promote and help to organise the provision by them of all services necessary for the discharge of the Corporation’s functions:
(d)
Co-operate with all of them, and support, stimulate, and foster their interest and activities in rehabilitation:
(e)
Stimulate, support, and foster the establishment of additional facilities where it considers that they are needed:
(f)
Sponsor, support, or foster any organisation or group concerned with rehabilitation:
(g)
Consider the extent to which rehabilitation may be promoted by fiscal and other measures in relation to rehabilitation training, re-employment, the cost of training equipment, and similar matters and make such recommendations as it considers desirable through the Minister to the appropriate authorities on such matters.
(2)
For the purpose of promoting rehabilitation under section 36 of this Act or for exercising all or any of its functions under subsection (1) of this section, the Corporation may, if it thinks fit, appoint a committee under section 16 of this Act.
(3)
Without limiting any of its other functions, the Corporation shall, in relation to the rehabilitation of persons who are for the time being in New Zealand, have the functions of—
(a)
Ensuring the re-establishment in their previous employment where possible of incapacitated earners:
(b)
Ensuring the training or retraining of incapacitated earners who cannot be so reinstated, so that they may secure other employment suited to their maximum capacity:
(c)
Assisting, where it considers appropriate, the development of the skills and talents of persons (other than earners) who suffer personal injury by accident so that they may secure employment suited to their maximum capacity:
(d)
For the purposes of the foregoing provisions of this section,—
(i)
Seeking the making of special arrangements for incapacitated persons to whom any of those provisions apply, whether individually or generally, concerning examinations, the completion of apprenticeships, or the obtaining of training or of practical experience necessary or desirable for the purpose of qualifying for entrance into any employment or occupation:
(ii)
Ensuring the granting, where it considers this justified, of financial assistance to incapacitated persons to whom any of those provisions apply during any period of desirable training or education in cases where no earnings related compensation is payable, or where (having regard to the circumstances of the persons) the cost of the training or education is beyond the financial resources of the persons:
(iii)
Ensuring the granting, where it considers this justified, of financial assistance towards the expenses of incapacitated persons to whom any of those provisions apply in cases where the persons are required to reside away from their ordinary places of residence for a period or periods while undertaking any such training or education:
(iv)
Stimulating, supporting, and fostering any additional educational, training, or other facilities which it considers necessary for the adequate development of its rehabilitation service:
(e)
Adapting or assisting with the adaptation of the home or residence of any incapacitated person who has cover in respect of the personal injury which caused his incapacity where, in the opinion of the Corporation, the adaptation or assistance will assist the rehabilitation of an incapacitated person: Provided that any such adaptation shall be made in consultation and co-operation with the body responsible for the institution where he is maintained:
(f)
Ensuring the provision (where needed) of a wheelchair or other aid for daily living for any person incapacitated through personal injury by accident:
(g)
Adapting or assisting with the adaptation or purchasing or assisting with the purchase of a motor vehicle where, in the opinion of the Corporation, the adaptation or purchase will assist the rehabilitation of an incapacitated person, or will improve his earning capacity:
(h)
Providing for the dissemination of information for the purposes of advice and education in connection with rehabilitation.
(4)
The Corporation shall—
(a)
Evaluate the availability and effectiveness of services for the rehabilitation of persons who have become incapacitated through personal injury by accident:
(b)
Inquire into instances where the treatment for the purposes of the rehabilitation of any such person appears to have been less than fully effective, and recommend to the appropriate authority corrective action when indicated.
(5)
The Corporation may—
(a)
Conduct studies and issue reports on the rehabilitative aspects of the progress of persons who have such cover:
(b)
Conduct research into or arrange for research to be conducted into aspects of rehabilitation.
Compare: 1972, No. 43, ss. 49, 50; 1973, No. 113, s. 16; 1975, No. 136, s. 5
Part IV Levies
Levies in Respect of Earners
38 Levies by employers and self-employed persons
Subject to this Act, a levy shall be payable by employers and self-employed persons in accordance with sections 43 and 44 of this Act and at the rate or rates prescribed under section 39 of this Act.
Compare: 1972, No. 43, s. 71; 1973, No. 113, s. 28(2)(a), (b)
39 Rates of levies and classification of earners
(1)
The Governor-General may from time to time, by Order in Council,—
(a)
Prescribe classifications of earners, industries, and occupations, or any of them, for levy purposes, and the prevention of accidents:
(b)
Prescribe the rate of levy payable in respect of any class so prescribed:
(c)
Prescribe differential rates of levy in respect of any class so prescribed according to the amount on which levy is payable:
(d)
Prescribe the maximum amount of earnings in respect of which levy is payable:
(e)
Prescribe a minimum amount of earnings as a self-employed person in respect of which levy is payable, either in relation to self-employed persons generally or in relation to any class or group of self-employed persons; and any amount so prescribed shall be deemed, for the purposes of this Act, to be earnings as a self-employed person in a financial year in place of any lesser amount of actual earnings as a self-employed person in that financial year.
(2)
Subject to this Act, the Corporation may decide—
(a)
Whether any earnings derived by any person are earnings as an employee or earnings as a self-employed person; and
(b)
Which classification of earner, industry, or occupation is appropriate in relation to any person or persons by or in respect of whom a levy is payable; and
(c)
Such other matters, in relation to earners, as it considers relevant for the purpose of assessing the amount or determining the rate of any levy to be paid under this Act.
Compare: 1972, No. 43, ss. 72, 74, 83(1); 1973, No. 113, s. 26(1)(b); 1975, No. 136, s. 10
40 Rewards and penalties according to safety record
(1)
For the purposes of this section the expression “accident experience”
, in relation to any employer or self-employed person, means—
(a)
The experience of that employer or self-employed person in relation to accidents that arise out of and in the course of employment by that employer or as a self-employed person, as the case may be; and
(b)
The frequency of those accidents; and
(c)
The financial cost to the Corporation of those accidents.
(2)
Subject to any regulations made under this Act, the Corporation may from time to time, after having regard to the accident experience of an employer or a self-employed person as compared with the general accident experience of employers or self-employed persons in the same class of business and such other factors as it considers relevant under the circumstances, in its discretion and on such terms and conditions as it thinks fit, by notice in writing to the employer or self-employed person concerned,—
(a)
Either impose on the employer or self-employed person a penalty of such amount as it thinks fit (not exceeding 100 percent of the amount of annual levy on earnings as an employee or, as the case may be, earnings as a self-employed person that that employer or self-employed person was last liable to pay immediately before the date of that notice), or require the employer or self-employed person to pay a levy at a penalty rate (not exceeding the normal rate of levy for his class by more than 100 percent), on the earnings for such period as the Corporation specifies:
(b)
Either pay to the employer or self-employed person a safety-incentive bonus of such amount as it thinks fit (not exceeding 50 percent of the amount of annual levy on earnings as an employee or, as the case may be, earnings as a self-employed person that that employer or self-employed person was last liable to pay immediately before the date of that notice), or permit the employer or self-employed person to pay a rebated rate of levy (not being below the normal rate for his class by more than 50 percent), on the earnings for such period as the Corporation specifies.
(3)
Where an employer or a self-employed person is required to pay a penalty under the foregoing provisions of this section, payment shall be made not later than the date specified in the notice; and sections 41, 42, and 114 of this Act shall apply to that penalty as if it were a levy payable under section 38 of this Act.
(4)
In respect of any period for which a penalty rate or a rebated rate of levy is so payable by any employer or self-employed person, this Act shall apply as if that rate were the appropriate rate prescribed by Order in Council in respect of the levy.
Compare: 1972, No. 43, s. 73; 1978, No. 36, s. 4
41 Agent to whom levies to be paid
(1)
Levies payable by an employer or a self-employed person in accordance with this Act shall be paid to the Commissioner of Inland Revenue as agent for the Corporation:
Provided that the Corporation in any particular case or in any particular circumstances may appoint some other agent to collect the levy in that case or in those circumstances:
Provided also that nothing in this subsection shall prevent the Corporation from arranging for or accepting payment to it of any levy.
(2)
Where the Commissioner of Inland Revenue is acting as agent for the Corporation pursuant to this section, the provisions of the Inland Revenue Department Act 1974 shall, so far as they are applicable, apply as if this Act were one of the Inland Revenue Acts and the levy were a tax or duty under one of the Inland Revenue Acts, and as if every offence under the Inland Revenue Department Act 1974 were an offence against this Act.
Compare: 1972, No. 43, s. 75
42 General provisions regarding statements of earnings and levies
(1)
Subject to this Act, statements of earnings shall be in such form and contain such particulars and shall be delivered by such time or times as the Corporation shall from time to time determine.
(2)
A statement purporting to be delivered by or on behalf of any employer or self-employed person shall, for all purposes, be deemed to have been furnished by that employer or person or by his authority until the contrary is proved.
(3)
If any levy is not paid on or before the last date allowed for the payment thereof, or if any levy in respect of which the Corporation causes a notice to be given under section 45(2) of this Act is not paid on or before the last day allowed for the payment thereof, a penalty of 10 percent of the amount unpaid in respect of the levy shall be added to that amount, and shall be recoverable as if it were part of the levy:
Provided that the Corporation may remit all or part of any such penalty if, in the special circumstances of any case, it thinks it fair and reasonable to do so, and if the amount so remitted has been paid, it shall be dealt with in accordance with subsection (4) of this section in such manner as the Corporation thinks fit.
(4)
Where the Corporation is satisfied that a levy or penalty payable under this Act has been paid in excess of the amount properly payable, it shall, in its discretion, either refund the amount paid in excess or credit any amount so paid in excess in account against any amount of levy or penalty which may for the time being be due and payable by the person by whom such payment in excess was made.
(5)
The Corporation may inspect statements of earnings furnished under this Act or cause such statements to be inspected in order to verify the correctness of levy payable under this Act.
(6)
All levies and penalties payable by any public authority pursuant to this Act shall be paid without further appropriation than this Act.
Compare: 1972, No. 43, ss. 76, 80, 81, 106; 1979, S.R. 176, r. 4
43 Statements by employers
(1)
Every employer who is required to furnish, pursuant to and for the purposes of section 353(1)(e) of the Income Tax Act 1976, a reconciliation statement as defined in that Act shall, within the time in which he is required to furnish that reconciliation statement, deliver a statement of the amount of earnings as employees that have been paid by him in the year to which that reconciliation statement relates and at the same time pay in relation to every such statement a levy calculated in accordance with subsection (3) of this section.
(2)
Every employer who is required to furnish, pursuant to and for the purposes of section 353(1)(f) of the Income Tax Act 1976, a reconciliation statement as defined in that Act shall, within the time in which he is required to furnish that reconciliation statement, deliver a statement of the amount of earnings as employees that have been paid or have become payable by him during the period commencing on the 1st day of April last preceding the date on which he ceases to be an employer and ending at the time at which he so ceases, and at the same time pay in relation to that statement a levy calculated in accordance with subsection (3) of this section.
(3)
Subject to section 40 of this Act, where, in accordance with subsection (1) or subsection (2) of this section, an employer is required to deliver a statement of the amount of earnings as employees paid by him and to pay a levy calculated in accordance with this subsection, that levy shall be calculated at the appropriate rate prescribed in accordance with section 39 of this Act on the amount of earnings as employees shown in the statement:
Provided that where an employee has derived earnings as an employee in excess of the amount prescribed pursuant to section 39(1)(d) of this Act,—
(a)
If those earnings have been derived from only one employer, that employer shall not be required to pay levy in respect of so much of those earnings as is in excess of the prescribed amount:
(b)
If those earnings have been derived from more than one employer, each of the employers shall pay levy on all earnings as an employee on which levy is payable and which are paid by him to that employee during that period, but any employer making such a payment of levy may make application in writing to the Corporation for a refund of the amount by which the levy so paid by him exceeds the amount of the levy that would have been paid by him in respect of those earnings if that levy were calculated only on the amount prescribed for the purposes of this section and the amount of the earnings paid by each of the employers had abated accordingly in the proportion that the amount of earnings paid by each of the employers bears to the total earnings paid to that employee:
(c)
No refund shall be made by the Corporation to an employer pursuant to paragraph (b) of this proviso after the expiration of 4 years from the date on which the statement of the actual earnings in respect of which the levy was payable was required to be delivered.
(4)
Notwithstanding anything in this section, it shall not be necessary for an employer to furnish a statement of the amount of earnings as employees that have been paid by him in the preceding year if the only such earnings were domestic earnings, and the domestic earnings during that period amount to less than the amount of the prescribed domestic allowance:
Provided that where such earnings are in excess of the prescribed domestic allowance then the statement of earnings shall include only the excess.
(5)
Where the earnings as an employee derived by the employee include earnings on which no levy is payable by reason of section 32(1)(b) of this Act and also include any other earnings as an employee derived as an employee of the Crown, the said earnings shall be deemed for the purposes of this section to have been derived from separate employers.
Compare: 1972, No. 43, s. 77; 1981, S.R. 203, r. 2
44 Statements by self-employed persons
(1)
In this section the expression “due date”
, in relation to a levy calculated in accordance with subsection (3) of this section, means the 7th day of February next following the date by which the statement of earnings in relation to which that levy is calculated is required to be delivered under subsection (2) of this section.
(2)
Every self-employed person who is required to furnish, pursuant to and for the purposes of the Income Tax Act 1976, a return of the income derived by him in his financial year shall, at the time when he furnishes that return of income, deliver a statement of his earnings as a self-employed person derived by him in that financial year and pay, in relation to such statement, within the period of one month immediately following the due date, a levy calculated in accordance with subsection (3) of this section.
(3)
Subject to sections 39(1)(d) and 40 of this Act, where, in accordance with subsection (2) of this section, a self-employed person is required to deliver a statement of his earnings as a self-employed person and to pay a levy, that levy shall be calculated at the appropriate rate prescribed in accordance with section 39 of this Act on the earnings shown in the statement or on the amount prescribed for the purposes of section 39(1)(e) of this Act, whichever is the greater:
Provided that, where, in any financial year, a self-employed person has derived any earnings as an employee which are included in his assessable income (as determined under and for the purposes of the Income Tax Act 1976),—
(a)
If the amount of those earnings as an employee is in excess of the amount prescribed pursuant to section 39(1)(d) of this Act, no levy shall be payable in respect of his earnings as a self-employed person in that financial year:
(b)
If the amount of those earnings as an employee is less than the amount so prescribed, levy calculated on or in relation to the earnings as a self-employed person of that person in that financial year shall be payable only on the difference between the earnings as an employee and the amount prescribed pursuant to section 39(1)(d) of this Act.
(4)
For the purposes of the proviso to subsection (3) of this section—
(a)
Earnings of a member of the Armed Forces of New Zealand, as such a member, derived in respect of any period while he is serving in a war or emergency shall be deemed to be earnings as an employee of that member on which levy is payable by an employer, notwithstanding that, by reason of section 32(1)(b) of this Act, no levy is payable thereon:
(b)
Earnings as an employee on which levy is not payable by reason of section 32(1)(b) of this Act but which may be exempted from liability for tax for the purposes of the Income Tax Act 1976, shall be deemed to be earnings as an employee which are included in the assessable income in which they would be included if they were not so exempted.
(5)
Notwithstanding anything in this section, if any self-employed person (with the consent of the Commissioner of Inland Revenue) changes the date of the annual balance of his accounts for the purposes of furnishing a return of income under the Income Tax Act 1976, he shall comply with such requirements concerning the delivery of statements and payment of levies as shall, in the opinion of the Corporation, be necessary in order to effect consequential adjustments and as shall be notified to him in writing.
Compare: 1972, No. 43, s. 78; 1979, S.R. 176, r. 2
45 Powers to assess levies
(1)
Where—
(a)
Any employer or self-employed person makes default in delivering any statement required to be delivered by him pursuant to section 43 or section 44 of this Act; or
(b)
The Corporation is not satisfied with any such statement delivered; or
(c)
The Corporation is not satisfied that the amount of a levy paid by any such person pursuant to the foregoing provisions of this Part of this Act is the correct amount; or
(d)
The Corporation has reason to suppose that any such person, although he has not delivered a statement required to be delivered as aforesaid, is liable to pay a levy,—
the Corporation may make an assessment of the amount of the earnings on which, in its judgment, a levy ought to be paid or to have been paid by that employer or self-employed person and of the amount of that levy, and may from time to time and at any time or times make all such alterations in or additions to that assessment as appear to the Corporation to be necessary to ensure the correctness thereof, notwithstanding that a levy or further levy already assessed may have been paid:
Provided that, where any employer or self-employed person has delivered a statement in respect of any period and has paid or been assessed for a levy or further levy in respect of that period, it shall not be lawful for the Corporation—
(e)
Where an assessment has not been made, to make an assessment; or
(f)
Where an assessment has been made, to alter the assessment so as to increase the amount thereof,—
after the expiration of 4 years from the end of the calendar year in which the statement was delivered unless, in the opinion of the Corporation, the statement so delivered was fraudulent or wilfully misleading.
(2)
The Corporation shall cause written notice to be given to the employer or self-employed person, as the case may be, of any assessment under subsection (1) of this section, and any such employer or self-employed person shall, upon such notice being given to him, be liable to pay or be deemed to have been liable to pay such levy or additional levy, and any penalty specified in the notice.
(3)
The validity of an assessment or amended assessment made pursuant to subsection (1) of this section shall not be affected by reason that any of the provisions of this Act have not been complied with; and, except in accordance with this Act, no such assessment or amended assessment shall be disputed in any Court or in any proceedings; and, except as aforesaid, every such assessment or amended assessment and all the particulars thereof shall be conclusively deemed and taken to be correct and the liability of the person assessed shall be determined accordingly.
(4)
The production of any document under the seal of the Corporation or under the hand of any officer of the Corporation authorised in that behalf, or, where the Commissioner of Inland Revenue is acting as agent for the Corporation, under the hand of the Commissioner of Inland Revenue or of any officer of the Inland Revenue Department authorised by him in that behalf, purporting to be a copy of or extract from any statement delivered pursuant to sections 43 and 44 of this Act or from any assessment or amended assessment made pursuant to subsection (1) of this section, shall in all Courts and all proceedings (including proceedings before a Review Officer) be sufficient evidence of the original, and the production of the original shall not be necessary; and all Courts and Review Officers shall in all proceedings take judicial notice of the seal of the Corporation and of the signature of any officer of the Corporation duly authorised in that behalf and of the signature of the Commissioner of Inland Revenue and of any officer of the Inland Revenue Department authorised by him in that behalf either to the original or to any such copy or extract.
Compare: 1973, No. 43, s. 83(3) to (7)
46 Deduction of levy from payment due to defaulters
(1)
Where an employer or a self-employed person (hereinafter in this section referred to as “the defaulter”
) has made default in payment of any levy or any penalty assessed under this Act, the Corporation may from time to time by notice in writing require any person to deduct from any amount payable or becoming payable by that person to the defaulter such sum as may be specified in the notice, and to pay every sum so deducted to the Corporation to the credit of the defaulter within such time as may be specified in the notice.
(2)
A copy of every notice given under subsection (1) of this section shall be given to the defaulter by the Corporation.
(3)
Whenever, pursuant to a notice under this section, any deduction is made from any amount payable to a defaulter, he shall be entitled to receive from the debtor a statement in writing of the fact of the deduction and the purpose for which it was made.
(4)
Every person commits an offence against this Act and is liable on summary conviction to a fine not exceeding $500 who—
(a)
Fails to make any deduction required by a notice under this section to be made from any amount payable by him to the defaulter; or
(b)
Fails after making any such deduction to pay the sum so deducted to the Corporation within the time specified in that behalf in the notice.
Compare: 1972, No. 43, s. 81a(1), (3), (5); 1978, No. 36, s. 6(1)
Levies on Motor Vehicles
47 Levies on motor vehicles
A levy at the rate determined under section 48 of this Act shall be payable in respect of—
(a)
Any motor vehicle which is required to be registered and licensed under Part II of the Transport Act 1962, and shall be paid by the owner of the motor vehicle to any Deputy Registrar of Motor Vehicles in respect of each licensing year (as defined in section 6 of the Transport Act 1962) which commences on or after the 1st day of April 1983; the levy shall accompany the application made under section 12 of the Transport Act 1962 for an annual licence for the vehicle:
(b)
Any motor vehicle which may be used in accordance with section 22 of the Transport Act 1962, and shall be paid by the person to whom a trade licence under this section is issued to any Deputy Registrar of Motor Vehicles in respect of each such licensing year; the levy shall accompany the application for a trade licence in respect of any set of trade plates for use in a specified licensing year:
(c)
Any motor vehicle of a visitor to New Zealand which is exempt from registration and licensing by reason of the Transport (Convention on Road Traffic) Regulations 1958 or of the corresponding provisions of any subsequent enactment, and shall be paid by the owner of the motor vehicle to any Deputy Registrar of Motor Vehicles in respect of each such licensing year in the course of which the motor vehicle is in New Zealand and is exempt from registration and licensing; the levy shall be paid forthwith upon the arrival of the motor vehicle in New Zealand or before the commencement of each such licensing year as the case may be.
Compare: 1972, No. 43, s. 98; 1973, No. 113, s. 3
48 Rates of levies on motor vehicles
(1)
Levies on motor vehicles shall be paid at such annual rates as are for the time being prescribed by the Governor-General by Order in Council.
(2)
For the purposes of subsection (1) of this section, the Governor-General may from time to time, by Order in Council,—
(a)
Prescribe a classification of motor vehicles for levy purposes:
(b)
Prescribe the rate of the levy payable in respect of motor vehicles of each class so prescribed.
(3)
Where a levy on a motor vehicle is payable for less than a year, the levy in respect of the vehicle prescribed pursuant to this section shall be reduced by one-twelfth thereof for every complete month by which that period is less than one year.
(4)
Where, pursuant to section 19 of the Transport Act 1962, the registration of any motor vehicle is cancelled, the Corporation shall, on application in writing made to it by the owner of the vehicle, and on being satisfied that the registration of the motor vehicle has been cancelled as aforesaid, refund to the owner a sum equal to one-twelfth part of the amount of the levy in respect of the vehicle prescribed pursuant to this section for every complete month between the date on which the application was received by the Corporation and the end of the licensing year in respect of which the levy is paid.
(5)
Where a motor vehicle to which section 47(1)(c) of this Act applies has been or is about to be removed from New Zealand, and the Corporation, on application in writing made to it by the owner of the vehicle, is satisfied, upon such evidence as it requires, that the vehicle has been or is about to be permanently removed from New Zealand and of the date of the removal or intended removal, the Corporation shall refund to the owner a sum equal to one-twelfth part of the amount of the levy in respect of the vehicle prescribed pursuant to this section for every complete month between the date of the removal or intended removal (as established to the satisfaction of the Corporation) and the end of the licensing year in respect of which the levy is paid.
(6)
Where—
(a)
In the course of a licensing year a motor vehicle is used for a purpose different from that indicated by the annual licence issued in respect of the vehicle; or
(b)
A motor vehicle to which section 47(1)(c) of this Act applies is destroyed or becomes permanently useless as a motor vehicle while in New Zealand,—
the Corporation may make an appropriate proportionate adjustment or refund in respect of the levy.
Compare: 1972, No. 43, s. 99
Levies on Drivers of Motor Vehicles
49 Power to impose levies on drivers of motor vehicles
The Governor-General may from time to time, by Order in Council,—
(a)
Impose annual levies on all or any of the following persons, namely,—
(i)
Holders of licences issued under Part III of the Transport Act 1962 and for the time being in force which authorise them to drive motor vehicles or any class of motor vehicles:
(ii)
All or any of the visitors to New Zealand who are holders of permits which, under the Transport (Convention on Road Traffic) Regulations 1958 or the Transport (Overseas Visitors) Regulations 1963, or under the corresponding provisions of any subsequent enactment, are for the time being deemed to be motor drivers’ licences issued in accordance with the Transport Act 1962:
(b)
Prescribe a classification of holders of such licences and permits for levy purposes:
(c)
Prescribe the rates of annual levies payable by holders of any class or classes so prescribed of such licences and permits:
(d)
Prescribe penalty rates of annual levies to be paid by drivers and classes of drivers whose driving or accident record is significantly worse than average:
(e)
Prescribe the times at which and the manner in which levies imposed under this section shall be paid, and the amount of the collection fees (if any) payable thereon.
Compare: 1972, No. 43, s. 100
50 Provisions applicable where owner or driver does not pay proper levy
If, in accordance with the authority conferred by section 49 of this Act, levies are imposed on holders of licences or permits,—
(a)
It shall not be lawful for any person to drive a motor vehicle, or permit a motor vehicle to be driven, on any road in New Zealand unless the driver is the holder of an appropriate licence or permit and the full amount of the levy payable by him as the holder of that licence or permit has been paid:
Provided that this paragraph shall not apply to the driving of a motor vehicle by a learner within the meaning of subsection (2) of section 25 of the Transport Act 1962 in circumstances permitted under that subsection; and
(b)
Every person commits an offence and is liable on summary conviction to a fine not exceeding $500 who drives a motor vehicle, or permits a motor vehicle to be driven, on any road in New Zealand in contravention of this section.
Compare: 1972, No. 43, s. 101
Agents
51 Agent to pay levies to Corporation
(1)
Subject to this section, where any levy is paid to an agent under this Part of this Act, the agent may deduct from the amount so paid a collection fee at a rate fixed in accordance with section 17(4) of this Act and shall, not later than the end of the month following the month in which payment is received, pay the balance of that amount to the Corporation.
(2)
Where any person, in accordance with this Part of this Act, delivers to the Commissioner of Inland Revenue any statement that he is, as a self-employed person, required so to deliver, from which it appears to the Commissioner that an amount of levy is, or will become, due and payable by that person, the Commissioner shall, without further appropriation than this section, pay to the Corporation out of the Consolidated Account an amount equal to that amount, less a collection fee at a rate fixed by the Corporation but not exceeding any prescribed rate.
(3)
Where notice is given to any person of an assessment or amended assessment under section 45(1) of this Act of an amount of levy payable by him as a self-employed person, the Commissioner of Inland Revenue shall, without further appropriation than this section, pay to the Corporation out of the Consolidated Account an amount equal to that amount less—
(a)
Any amount already paid to the Corporation under this subsection or subsection (2) of this section in respect of that amount or any part of it; and
(b)
A collection fee at a rate fixed in accordance with section 17(4) of this Act.
(4)
All levies paid to the Commissioner of Inland Revenue by any person as a self-employed person in respect of—
(a)
An assessment or amended assessment issued; or
(b)
A statement delivered to the Commissioner in accordance with this Part of this Act—
shall be applied against amounts paid by him to the Corporation under subsection (2) or subsection (3) of this section.
(5)
Where any amount of levy payable by any person to the Commissioner of Inland Revenue as a self-employed person in respect of which the Commissioner has made any payment to the Corporation under subsection (2) or subsection (3) of this section is written off under section 114(7) of this Act or is reduced by an assessment or amended assessment under section 45(1) of this Act, the Commissioner may make an appropriate adjustment in any subsequent amount paid to the Corporation by him under that subsection.
(6)
All levies received by a Deputy Registrar of Motor Vehicles under this Part of this Act shall be paid into the Post Office Account and from the amount of every levy so received there shall be deducted a collection fee at a rate fixed in accordance with section 17(4) of this Act, and the balance shall, not later than the end of the month following the month in which payment is received, without further appropriation than this section, be paid to the Corporation.
Compare: 1972, No. 43, ss. 82, 102; 1977, No. 138, s. 2(1); 1978, No. 36, s. 13(2)
Part V Earnings Related Compensation
Calculation of Entitlement
52 Calculation of earnings
(1)
For the purposes of this Act, unless the context otherwise requires, the expression “earnings”
, in relation to any person, means all his earnings as an employee as determined in accordance with this section and all his earnings as a self-employed person as so determined.
(2)
For the purposes of this Act, the expression “earnings as an employee”
includes—
(a)
Any wages, salary, allowances (including allowances of any of the kinds referred to in section 72 of the Income Tax Act 1976), holiday pay, overtime pay, long-service leave pay, bonuses, gratuities, extra salary, commissions, directors’ fees, honoraria, emoluments, or remuneration of any kind paid or payable (whether in cash or otherwise) to any person in respect of or in relation to the employment of that person as an employee, not being—
(i)
A lump sum payment (other than accrued holiday pay or accrued long-service leave pay) made to any person by way of bonus, gratuity, or retiring allowance on the occasion of any termination of employment of that person as an employee for any reason; or
(ii)
Any payment made to any person by way of superannuation, pension, or annuity whether in respect of the past employment of that person, or of any other person of whom that first-mentioned person is or has been the spouse or a child or a dependant; or
(iii)
Any commission, retainer, or other amount that is paid or payable (whether in cash or otherwise) to a person who is deemed to be an employee under subsection (2) or subsection (3) of section 2 of this Act, by any person who is deemed to be the employer of that person under those subsections:
(b)
An amount equal to 80 percent of the total amount paid or payable (whether in cash or otherwise) to any person who is deemed to be an employee under subsection (2) of section 2 of this Act, by any person who under that subsection is deemed to be the employer of that person:
(c)
An amount equal to 90 percent of any amount paid or payable (whether in cash or otherwise) to any person who is deemed to be an employee under subsection (3) of section 2 of this Act, by any person who under that subsection is deemed to be the employer of that person,—
but does not include—
(d)
Any allowance paid or payable (not being an allowance paid or payable to a person who is deemed to be an employee under subsection (2) or subsection (3) of section 2 of this Act by a person who is deemed to be an employer of that first-mentioned person) to the extent to which that allowance is, pursuant to a determination made by the Commissioner of Inland Revenue under section 73 of the Income Tax Act 1976 exempt from income tax; or
(e)
Any allowance of the kind referred to in section 69 of the Income Tax Act 1976; or
(f)
Any amount which is paid or payable by an employer, being or purporting to be remuneration for services rendered by an employee and allocated to a person or persons other than that employee in accordance with section 97 of the Income Tax Act 1976; or
(g)
Any amount (not being an amount which under section 55 of this Act is deemed to be a dividend) which under section 190 of the Income Tax Act 1976 is deemed to be a dividend paid by a company to any person and deemed to be received by that person as a shareholder of the company; or
(h)
Any amount which, under section 55 of this Act, is deemed to be a dividend received by a person from a company for which he provides services and in which he is a shareholder; or
(i)
Where subsection (4) of section 2 of this Act applies, any fees, allowances, bonuses, gratuities, commissions, emoluments, or remuneration of any kind paid or payable (whether in cash or otherwise) by the company, in respect of the services of the director in his capacity as director, to a firm, body, or institution of which that director is a member or employee; or
(j)
Any amount derived by any person as an employee which would otherwise be taken into account in calculating earnings as an employee under this subsection, but which is derived from employment outside New Zealand and is derived otherwise than from employment by virtue of which that person has cover in respect of personal injury by accident outside New Zealand; or
(k)
Any payments of which no account shall be taken in accordance with section 56 of this Act; or
(l)
Any compensation, as defined in section 2(1) of this Act, or any compensation payable under the Workers’ Compensation Act 1956; or
(m)
Any earnings in respect of which no levy is payable by reason of section 83(3) of this Act; or
(n)
Any payment made by an employer in respect of which he is reimbursed by the Corporation under section 59(6) of this Act, to the extent that the Corporation is, by reason of such reimbursement, relieved and discharged from liability to pay earnings related compensation which otherwise would be payable by the Corporation to the employee.
(3)
For the purposes of this Act, the expression “earnings as a self-employed person”
, in relation to a self-employed person, means so much of the assessable income (as determined under and for the purposes of the Income Tax Act 1976) of that person as is beneficially derived by him from the carrying on by him of a business; but does not include income so derived to the extent to which that income consists of—
(a)
Income from dividends (as defined in section 4 of the Income Tax Act 1976), not being income derived by that person from the carrying on by him of the business of dealing in shares; or
(b)
Income from interest or from any premium or like revenue arising from a debt, not being income derived by that person from the carrying on by him of the business of lending money or of a business in the course of the conduct of which financial accommodation is regularly given to customers; or
(c)
Income from rents, fines, premiums, or other revenues (including payment for or in respect of the goodwill of any business, or the benefit of any statutory licence or privilege) derived by that person as the owner of land from any lease of, or licence relating to, the land (including any chattels included in the lease or licence), not being income derived by that person from the carrying on by him of the business of—
(i)
Operating any hotel, motel, motor camp, hostel, convalescent home, private hospital, or boarding house; or
(ii)
Hiring premises in conjunction with the provision of goods and services thereon where the hiring of the premises is for the sole or principal purpose of enabling the provision of those goods and services; or
(d)
Income from the lease or bailment of livestock; or
(e)
Income from the grant or renewal, or from the sale or other disposition, of any right relating to—
(i)
The operation of any mine or quarry; or
(ii)
The extraction, removal, or other exploitation of any standing timber or of any natural resource; or
(iii)
The taking in any other manner of profits or produce from land; or
(f)
Income from any easement affecting land; or
(g)
Income from payments of any kind made as consideration for—
(i)
The sale or other disposition of, or the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade mark, or other like property or right; or
(ii)
The supply of scientific, technical, industrial, or commercial knowledge or information (but not including any services which are rendered as a means of enabling the application or enjoyment of such knowledge or information); or
(h)
Income derived by that person from a partnership or joint undertaking or other business arrangement where that person does not render personal services to a substantial degree in the carrying on of the business of the partnership or joint undertaking; or
(i)
Any share or interest in income derived by that person as a beneficiary under any will, trust, or settlement, not being a share or interest referred to in subsection (4) of this section; or
(j)
Income which is neither derived from New Zealand (as defined in section 2 of the Income Tax Act 1976) nor deemed for the purposes of the Income Tax Act 1976 to be derived from New Zealand (as so defined); or
(k)
Any compensation as defined in section 2(1) of this Act; or
(l)
Any earnings referred to in subsection (2)(m) of this section:
Provided that, for the purpose of assessing earnings for the payment of compensation, any income of a person allowed by any provision of the Income Tax Act 1976 to be spread back or apportioned to a financial year earlier than that in which the income was derived shall not be included in the earnings of that person for any financial year other than that in which it was derived, if the application to the Commissioner of Inland Revenue for the spread-back or apportionment was made subsequent to the time of the accident in respect of which earnings related compensation is or is to be claimed.
(4)
For the purposes of subsection (3) of this section, in the case of a person to whom paragraph (b) of the definition of the expression “self-employed person”
in section 2(1) of this Act applies, any income referred to in that paragraph shall, to the extent of that person’s vested beneficial share or interest in that income, be deemed to have been derived by him from the carrying on by him of a business.
(5)
Nothing in this section shall restrict section 30(6) of this Act.
Compare: 1972, No. 43, s. 103; 1973, No. 113, s. 39; 1974, No. 71, s. 4
53 Relevant earnings
(1)
Subject to this Act, for the purpose of determining the amount of any earnings related compensation payable to an earner, or payable at any time to any dependant of such an earner, the amount of his relevant earnings shall be such amount as, in the opinion of the Corporation, would, at the time of the accident, fairly and reasonably represent his normal average weekly earnings, having regard to such information as the Corporation may obtain regarding his earnings before the time of the accident and his earnings at the time of the accident, and the period of his residence in New Zealand before the time of the accident and his work history, and such other relevant factors as the Corporation thinks fit.
(2)
If the earner was an employee at the date of the accident and was not then also a self-employed person and had not been a self-employed person at any time during the period of 12 months immediately preceding the date of the accident, in fixing his relevant earnings under subsection (1) of this section,—
(a)
The Corporation may have regard, in the first place, to the amount of his weekly earnings as an employee at or about the time of the accident, or (if the Corporation in its discretion so decides) the amount of his earnings as an employee at or about the time of the accident when converted in such manner as the Corporation considers appropriate to a weekly basis; but
(b)
If, in the opinion of the Corporation, the amount ascertained under paragraph (a) of this subsection would not, at the time of the accident, properly represent his normal average weekly earnings, the Corporation may then have regard to the amount of his average weekly earnings during the period of 28 days immediately preceding the date of the accident, or such part or parts of that period as the Corporation may consider as appropriate for the purpose; but
(c)
If, in the opinion of the Corporation, the amount ascertained under paragraph (b) of this subsection also would not, at the time of the accident, properly represent his normal average weekly earnings, the Corporation may then have regard to his average weekly earnings during the period of 12 months immediately preceding the date of the accident or such part or parts of that period as the Corporation may select for the purpose:
Provided that nothing in this subsection shall preclude the Corporation from having regard also to such other factors as it may consider relevant for the purpose of subsection (1) of this section.
(3)
If the earner was a self-employed person at the date of the accident (whether or not he was also an employee at the date of the accident) or if the earner had been a self-employed person at any time during the period of 12 months immediately preceding the date of the accident, the Corporation, in fixing his relevant earnings under subsection (1) of this section, may have regard to all or any of the following factors, as it thinks appropriate for the purpose:
(a)
His earnings as a self-employed person during his financial year last ended before the day immediately following the date of the accident, or, if the amount of those earnings is not for the time being readily determinable, such sum as may be estimated by the Corporation as fairly and reasonably representing those earnings:
(b)
His earnings as an employee (if any) during that financial year and his earnings as a self-employed person during that financial year, or, if the amount of those earnings is not for the time being readily determinable, such sum as may be estimated by the Corporation as fairly and reasonably representing those earnings:
(c)
The average amount of his earnings as a self-employed person during any of the periods of 2 or 3 or 4 consecutive financial years last ended before the day immediately following the date of the accident, or, if the Corporation, in the exercise of its discretion, so decides, during any one or more of those financial years which it may select as appropriate for the purpose:
(d)
His earnings as an employee (if any) at or about the time of the accident, or during the period of 12 months immediately preceding the date of the accident, or during such part or parts of that period as the Corporation may select as appropriate for the purpose:
(e)
His earnings as a self-employed person (as determined or estimated by the Corporation) during the period of 12 months immediately preceding the date of the accident, or during such part or parts of that period as the Corporation may select as appropriate for the purpose, if sufficient information, including accounts, is furnished to the Corporation to enable it to determine or estimate the amount of his earnings as a self-employed person during that period or the said part or parts of that period, as the case may be:
Provided that nothing in this subsection shall preclude the Corporation from having regard also to such other factors as it may consider relevant for the purpose of subsection (1) of this section.
(4)
If the relevant earnings of an employee as determined in accordance with the foregoing provisions of this section would be significantly more or significantly less than the average weekly amount of the earnings as an employee that he would, in the opinion of the Corporation, have derived during the period of short term incapacity if he had not suffered the injury, then, notwithstanding anything in the foregoing provisions of this section, the Corporation may, if it thinks fit, assess his relevant earnings at that amount. Any assessment made under this subsection shall apply only for the period of short term incapacity.
(5)
The Corporation may, from time to time, in so far as it thinks fit to do so,—
(a)
Fix a minimum amount of relevant earnings for any person who, either, having engaged to work under a contract of service, has not commenced to work under that contract, or was not in regular work in paid employment, and had made positive arrangements and preparations to take up such work in New Zealand (either as an employee or a self-employed person) at a future time, being not more than 12 months after the date of the accident, and satisfies the Corporation to this effect:
(b)
Having regard to the liability imposed on self-employed persons for payment of levy under Part IV of this Act, fix a minimum amount of relevant earnings for self-employed persons:
(c)
Having regard to that liability, and to such other considerations as the Corporation may think relevant, fix a minimum amount of relevant earnings for any class or group of self-employed persons, whether those persons are classified or described by reference to the nature of their employment, or to the hours in which they have normally engaged in that employment before the accident, or to the period of time for which they have been engaged in that employment, or to the amount or rate of levy imposed on them, or by reference to any combination of those factors, or are classified or described in any other manner whatsoever that the Corporation thinks fit,—
and may from time to time vary, amend, or revoke, in whole or in part, any determination made under this subsection.
(6)
The Governor-General may, from time to time, by Order in Council specify a percentage or amount by which the amount, for the time being, of any relevant earnings required to be ascertained under this section shall increase. Any such Order in Council may be made in relation to all such relevant earnings or to such only of those relevant earnings as may be specified in the order, and may prescribe any limitation as to its effect, whether by way of reference to any persons or classes of persons or to the time at which an accident has happened or to the purposes for which the increase is to apply, or by way of any other specification, stipulation, condition, inclusion, or exclusion whatsoever. The Order in Council or any part or parts thereof may be made so as to come into effect on a date or dates to be specified therein in that behalf, being either the date of the Order in Council or any other date or dates, whether before or after the date thereof.
(7)
Subject to any limitations as to the effect of an Order in Council made under subsection (6) of this section, where the relevant earnings of an injured person are increased pursuant to subsection (6) of this section, the amount of those relevant earnings, as for the time being so increased, shall, on and after the date on which the Order in Council (or the relevant part thereof) comes into effect, be the amount of his relevant earnings ascertained in accordance with this section where that amount is required to be ascertained for the purpose of—
(a)
Determining his loss of earning capacity for the time being in respect of any period of incapacity to which section 59 of this Act applies; and
(b)
Assessing the weekly amount of earnings related compensation in respect of permanent loss of earning capacity where the assessment is made under section 60 of this Act; and
(c)
Determining the minimum rate of compensation for the time being payable to him under section 61 of this Act; and
(d)
Applying sections 62 and 63 of this Act.
(8)
Notwithstanding the foregoing provisions of this section, in any case where a person suffers personal injury by accident during the period for which his cover is deemed under section 69 of this Act to extend, and his relevant earnings are determined under this section, the amount of his relevant earnings shall be so determined and subsection (6) of this section shall apply as if the accident had happened on the day immediately preceding the first day of that period.
(9)
Where any period of an earner’s incapacity for work does not commence on the date of the accident, and the Corporation is of the opinion that relevant earnings ascertained in accordance with the foregoing provisions of this section do not fairly and reasonably represent the earner’s normal average weekly earnings at the time of the commencement of the period of incapacity for work, the Corporation may, notwithstanding the foregoing provisions of this section, determine an amount which, in its opinion, would fairly and reasonably represent his normal average weekly earnings at the time of the commencement of the period of incapacity for work, having regard to such information as it may obtain regarding his earnings before the time of the commencement of the period of incapacity for work and his earnings at the time of the commencement of that period, and the period of his residence in New Zealand before the time of the period of incapacity for work and his work history, and such other relevant factors as the Corporation thinks fit; and any amount so determined shall be treated as if it was his relevant earnings for the purpose of assessing earnings related compensation during the particular period of incapacity for work:
Provided that any determination made under this subsection shall not bind or prejudice the Corporation or limit or restrict its discretions or powers with regard to any assessment or determination of that person’s relevant earnings or loss of earning capacity during any other period of his incapacity for work to which the determination does not relate.
(10)
Notwithstanding anything in this section, the Governor-General may, from time to time, by Order in Council make regulations varying the provisions of this section in relation to the determination of the relevant earnings of a member of the Armed Forces of New Zealand serving in a war or emergency who becomes entitled to compensation under section 32 of this Act; and in so doing may prescribe the extent and the manner (if any) to or in which his earnings as a civilian during any period or periods before he became a member of those Armed Forces serving in that war or emergency may be taken into account in determining those relevant earnings.
Compare: 1972, No. 43, s. 104; 1975, No. 136, s. 11(1)
54 Period of earnings
(1)
Subject to this section, the earnings as an employee of any person during any period shall, for the purposes of sections 53 and 59 of this Act, be so much of his earnings as an employee as relates to paid employment during that period, whether payment thereof is received before, during, or after that period, and notwithstanding that any earnings as an employee which relate to paid employment before or after that period may be received during that period.
(2)
Where a person receives earnings as an employee which—
(a)
Are received instead of leave on pay; or
(b)
Are, or are in the nature of, bonuses, gratuities, directors’ fees, or honoraria; or
(c)
Are not referable to any particular period of paid employment,—
the Corporation may, for the purposes of sections 53 and 59 of this Act, determine to what period of paid employment those earnings or any part or parts of those earnings related.
(3)
Where the relevant earnings of any person have been determined by reference to earnings as an employee in accordance with section 52 of this Act, and earnings as an employee, which have not been taken into account in determining those relevant earnings, are received after the time of the accident in respect of his paid employment before the time of the accident, the Corporation shall not be under any obligation to reassess the relevant earnings, but may, at its discretion, make such reassessment as it thinks fit on written application by or on behalf of that employee within 3 months of receipt of those earnings, or within such extended period as the Corporation may allow.
Compare: 1972, No. 43, s. 104a; 1975, No. 136, s. 12
55 Working shareholders of companies
(1)
Where a person provides services for a company in which he is a shareholder (whether or not he is also a director of the company), the Corporation may determine—
(a)
How much of the amount that he receives from the company represents reasonable remuneration for the services which he renders to the company otherwise than as a director, and shall be deemed to be earnings as an employee for the purposes of this Act:
(b)
If he is a director of the company, how much of the amount that he receives from the company represents reasonable remuneration for his services as a director, and shall be deemed to be directors’ fees for the purposes of this Act:
(c)
That the balance of the amount that he receives from the company shall be deemed to be a dividend for the purposes of this Act.
(2)
Any determination made by the Corporation under this section shall be binding on the company and person.
Compare: 1972, No. 43, s. 105
56 Husband or wife employed by or rendering services to spouse
(1)
Where a husband or wife is working in paid employment as an employee of his or her spouse or is otherwise rendering services for his or her spouse, no account shall be taken of that employment or those services or of payments in respect of that employment or those services for the purposes of determining—
(a)
The entitlement of the person so working or rendering services as an earner; or
(b)
Liability for levies; or
(c)
The amount of the earnings of that person under section 52 of this Act,—
except as provided in subsections (2) and (3) of this section.
(2)
If a husband or wife is working in paid employment as an employee of his or her spouse or is otherwise rendering services for his or her spouse and that spouse makes, or has made, application in writing to the Commissioner of Inland Revenue for his consent to deduction being made in respect of payments by that spouse to the person so working or rendering services, in respect of that employment or those services, in calculating (for the purposes of the Income Tax Act 1976) the assessable income of the spouse making those payments, and if consent is or has been given by the Commissioner of Inland Revenue to any such deduction being made, then, for the purposes mentioned in paragraphs (a), (b), and (c) of subsection (1) of this section, account shall be taken of—
(a)
That employment or those services with regard to any time or period after the date on which that application is or was received by the Commissioner of Inland Revenue; and
(b)
Payments made after the date on which that application is or was so received in respect of that employment or those services—
to the extent that the consent of the Commissioner of Inland Revenue relates and continues to relate to that employment or those services and to payments so made, notwithstanding that the consent may not be given until after the date on which the application is or was so received.
(3)
Notwithstanding the foregoing provisions of this section, in any case where a husband or wife is working in paid employment as an employee of his or her spouse, or is otherwise rendering services for his or her spouse, and that spouse submits or has submitted a return of income to the Commissioner of Inland Revenue in which the payments made by that spouse to the person so working or rendering services are shown as an expense incurred in the production of assessable income, and the spouse who receives the payments also makes or has made a return of income and pays or has paid tax (if appropriate) on that income, then the Corporation may accept this as sufficient compliance with subsection (2) of this section.
Compare: 1972, No. 43, s. 62; 1973, No. 113, s. 21(a)
First Week Compensation
57 First week
(1)
Where as a result of incapacity due to personal injury by accident arising out of and in the course of his employment an employee is unable, during the working week comprising the day of the accident and the 6 days thereafter, to work in paid employment as an employee as much time in the aggregate as he would have so worked if he had not suffered the incapacity, then, without prejudice to any rights he may have under any contract of service or conditions of employment, that employee shall be paid in accordance with subsection (2) of this section in respect of the total time (inclusive of overtime) that he loses from work as an employee as a result of the incapacity during that working week as if he had worked during that time; and, in the absence of proof to the contrary, it shall be presumed that the time (inclusive of overtime) to be worked by the injured person as an employee during that working week was the same as the time (inclusive of overtime) that he worked as an employee during the 7 days before the date of the accident:
Provided that the amount of any payment made to the injured person by the employer in the course of employment by whom the accident arose, otherwise than under this subsection, in respect of time so lost as an employee of that employer, may be deducted from the amount to be paid to him by that employer under this subsection in respect of that lost time:
Provided also that any amount paid by an employer of the injured person (other than the employer in the course of employment by whom the accident arose) to that person in respect of time so lost as an employee of that employer, so far as it is in excess of 20 percent of the full amount (inclusive of overtime) that the employee would have earned if he had worked in that employment during that time, may be deducted from the amount to be paid to him by the Corporation under this section in respect of that lost time.
(2)
The amount to be paid under subsection (1) of this section shall—
(a)
In respect of time so lost as an employee of the employer in the course of employment by whom the accident arose (being an employer in whose employment he had been during the 7 days before the date of the accident, and with whom his employment was not due to terminate on the day of the accident or within 6 days thereafter), be paid by that employer, and shall be 80 percent of the amount (inclusive of overtime) that the employee would have earned if he had worked in that employment during that time:
(b)
In respect of time so lost in any other employment, be paid by the Corporation, and shall be 80 percent of the amount (inclusive of overtime) that the employee would have earned if he had worked in that other employment during that time:
Provided that the maximum amount that may be paid by the Corporation to the employee in respect of the working week under this paragraph shall be the amount of the difference between his earnings as an employee during that week (including payments made to him in respect of that week under paragraph (a) of this subsection) and the maximum amount of earnings related compensation that can be paid under section 59 of this Act in respect of a like period for which compensation is payable under that section.
(3)
Where an employer fails to pay any amount which he is required to pay to an employee under subsection (2) of this section, the Corporation may, if it thinks fit, pay the amount to the employee:
Provided that any amount paid by the Corporation under this subsection shall constitute a debt due to the Corporation by the employer which may be recovered by the Corporation in accordance with section 114 of this Act.
(4)
Where an employee to whom payments would have to be made under this section dies during the course of the working week, payments shall be so made to him only in respect of each working day during the whole or any part of which he remains alive.
(5)
Before an employer or the Corporation makes any payment to an employee under this section, the employer or the Corporation may require satisfactory evidence of the accident, injury, and incapacity, or any of them, including a certificate by a registered medical practitioner; and where the Corporation is required to meet any claim by an employee for any compensation or payment under this section, it may require the employee to produce such evidence as it considers necessary to determine the amount properly so payable.
(6)
Except as provided in this section, no earnings related compensation shall be payable by the Corporation to any person who suffers personal injury by accident in respect of the day of the accident and the 6 days thereafter.
(7)
Where an employee suffers personal injury by accident in any of the circumstances set out in this subsection, then, for the purposes of this section, and subject only to sections 90 and 92 of this Act, that accident shall be deemed to have arisen out of and in the course of his employment—
(a)
Where the accident occurs during the course of his employment, notwithstanding that he is acting in contravention of any Act or regulations applicable to his employment or in contravention of any instructions given by his employer or in the absence of instructions from his employer; or
(b)
Where the accident occurs during any temporary interruption of work for a meal or rest or refreshment, if the accident happens upon premises occupied by the employer, or on premises to which the employee has the right of access by virtue of his employment or on premises to which the employee is permitted to resort by the express or implied authorisation of his employer; or
(c)
Where the accident occurs while the employee is on premises or at a place to which he has access by virtue of his employment or while he is travelling between those premises or place and the employer’s premises by the most direct practicable route; or
(d)
Where the accident occurs in the course of his employment and is caused by another person’s misconduct, skylarking, or negligence, or by the behaviour or presence of any animal, bird, fish, insect, or reptile, or by any force of nature, and the employee did not directly or indirectly induce or contribute to the happening of the accident by any act not incidental to his employment; or
(e)
Where the accident occurs while the employee is travelling directly to his place of work or employment from his place of residence or directly from his place of work or employment to his place of residence by a route which, having regard to all the circumstances, was a reasonable one for him to follow; or
(f)
Where the accident occurs while the employee is working under an illegal contract of service or apprenticeship, whatever the cause of the illegality.
(8)
For the purposes of this section,—
(a)
While any person has his name entered on a bureau register kept under section 28 of the Waterfront Industry Act 1953 or while he is engaged on waterside work (as defined in section 2 of that Act), he shall be deemed in either case to have engaged to work in New Zealand in waterside work (as so defined) under a contract of service; and
(b)
The Waterfront Industry Commission (as constituted under that Act) shall be deemed, in respect of that engagement, to be the sole employer of that person notwithstanding that he may from time to time be employed in such work by another person; and
(c)
If that person, having presented himself for engagement in such work, suffers personal injury by accident while he is awaiting engagement at any place set aside for that purpose or to which he has been directed by the Commission for that purpose (or while travelling by the most direct practicable route between those places),—
then the foregoing provisions of this section shall apply as if the accident arose out of and in the course of his employment.
Compare: 1972, No. 43, s. 112
58 Priority in bankruptcy or winding up for first week’s compensation
(1)
For the purposes of this section the expression “the relevant date”
, in relation to a bankrupt employer, means the date of the adjudication (as defined in section 2 of the Insolvency Act 1967) and, in relation to a company, has the same meaning as is assigned to it for the purposes of section 308 of the Companies Act 1955.
(2)
There shall be included among the debts which, under section 104 of the Insolvency Act 1967, are to be paid in the fourth priority in the distribution of the property of a bankrupt, and among the debts which, under section 308 of the Companies Act 1955, are to be paid in priority to all other debts in the winding up of a company, any sum that, in accordance with section 57 of this Act, is payable in respect of time lost before the relevant date (as defined in this section): Provided that the sum to which priority is to be given in accordance with this section shall not exceed the sum of $1,500 in the case of any one claimant:
Provided also that, for the purposes of this section, where the Corporation is a claimant in respect of time lost by more than one employee, its claim in respect of the time lost by each of those employees shall be deemed to be a separate claim made by a separate claimant.
Compare: 1972, No. 43, s. 112a; 1975, No. 136, s. 17
Compensation After First Week
59 Earnings related compensation after first week for temporary loss of earning capacity
(1)
Where, as a result of incapacity due to personal injury by accident, an earner suffers any temporary loss of earning capacity as determined under the provisions of this section during any period after the expiration of the working week comprising the day of the accident and the 6 days thereafter, the Corporation shall pay him earnings related compensation in respect of that loss at the rate of 80 percent of the amount of his loss of earning capacity due to the injury.
(2)
For the purposes of this section, an earner’s temporary loss of earning capacity due to the injury shall, subject to this section, be determined by deducting from the amount of his relevant earnings for a like period the aggregate of the amount of his earnings as an employee (if any) and the amount of his earnings as a self-employed person (if any) during the period: Provided that if the Corporation considers, having regard to the medical and other evidence available to it, thatthe earner is—
(a)
Not endeavouring to work or earn in paid employment to the extent of his capacity; or
(b)
Not working or earning in paid employment to the extent to which he would be able to do so if the only factor affecting his ability to work or earn in paid employment were his incapacity for work due to the injury,—
the Corporation may fix the amount to be so deducted at such figure as it considers appropriate.
(3)
Where after an accident, a self-employed person changes the accounting procedures or methods used to determine his earnings as a self-employed person so that his earnings after the accident are thereby reduced and his temporary loss of earning capacity is in consequence increased, the Corporation shall, unless it consents in writing to such changes, disregard the changes for the purpose of calculating the amount of earnings related compensation, and make its assessment of his temporary loss of earning capacity on the basis of the procedures and methods being used prior to the accident.
(4)
If, as a result of the incapacity due to the injury, an employee is unable to work in employment as an employee for any period and his employer pays him earnings as an employee for that period, then, if—
(a)
The amount so paid; and
(b)
The amount of earnings related compensation which would have been payable, in accordance with the foregoing provisions of this section, in respect of his loss of earning capacity as an employee for that period if the employer had made no such payment—
are together in excess of what would have been the amount of his loss of earning capacity as an employee for that period if the employer had made no such payment, the amount of earnings related compensation payable to him for that period shall be determined by deducting the amount of that excess from the amount of earnings related compensation which would have been payable for that period if the employer had made no such payment.
(5)
Notwithstanding the foregoing provisions of this section, where it is likely that the commencement of the payment of earnings related compensation under this section for any period will be unduly delayed on account of difficulties or uncertainties which may arise in ascertaining the amount of the relevant earnings of the incapacitated person or his earnings as an employee or as a self-employed person during that period, the Corporation, in its discretion, may do all or any of the following:
(a)
The Corporation may, having regard to the evidence which is presently available, determine a person’s loss of earning capacity for any period of his incapacity at such amount as it considers will provide fair and just compensation without being required to make assessments of relevant earnings and actual earnings:
Provided that any such determination shall not bind or prejudice the Corporation or limit or restrict its powers with regard to any determination of that person’s loss of earning capacity during any part of the period of his incapacity to which the determination does not relate:
(b)
Where the Corporation has not received sufficient evidence to enable it to determine the relevant earnings or actual earnings of any person for any period it may make an interim determination of the person’s relevant earnings or actual earnings, as the case may be, for the period, having regard to other evidence that it has received in respect of that person (whether for that period or any other period) and to all relevant circumstances, and may make payments to the person on account under subsection (1) of this section for such period and at such rate as the Corporation thinks fit:
Provided that the rate shall not exceed 50 percent of the earnings related compensation for the time being as ascertained by reference to an interim determination of the person’s relevant earnings or actual earnings as aforesaid:
Provided also that any payments of earnings related compensation made by the Corporation under this paragraph in excess of the proper entitlement under subsection (1) of this section shall constitute a debt due to the Corporation which may be recovered by the Corporation in accordance with section 114 of this Act.
(6)
Where an employee suffers personal injury by accident and would be entitled to earnings related compensation under this section for any loss of earning capacity as an employee, and his employer desires or is obliged to pay to him any earnings as an employee for that period in excess of his earnings for time worked by him for that employer during that period, the Corporation may, at its sole discretion and subject to such terms and conditions as it may think fit to impose, reimburse the employer for any portion of the earnings as an employee (in excess of earnings for time worked, if any) so paid for that period which the Corporation considers to be appropriate in the circumstances, and, to the extent that such reimbursement is made, the Corporation shall be relieved and discharged from any liability to pay earnings related compensation to the employee for that period:
Provided that the amount so reimbursed shall not in any circumstances exceed the amount of earnings related compensation that would have been payable for the period if no earnings as an employee had been paid to him for the period.
(7)
Where any earner derives earnings from carrying on a business or doing other work during any period, and the amount so earned on each day throughout the period cannot be otherwise determined, for the purposes of this section the amount of those earnings in that period shall be deemed to have been derived at a uniform daily rate throughout the period.
(8)
Notwithstanding section 52 of this Act, where a person’s earnings include an allowance of any of the kinds referred to in section 72 of the Income Tax Act 1976, the Corporation may, for the purpose of assessing the award of earnings related compensation payable to that person, determine the value of that allowance at such amount as it considers would be a fair assessment of the proper worth of the allowance.
(9)
Except as provided in sections 53(5)(a), 63, and 69 of this Act, no earnings related compensation shall be payable under this section to a person who suffers personal injury by accident unless he was an earner at the time of the accident.
(10)
Notwithstanding anything in this section, the weekly amount of earnings related compensation for the time being payable to any person in accordance with this section shall not exceed $600, or such other maximum amount as may from time to time be specified for the purposes of this section by the Governor-General by Order in Council.
Compare: 1972, No. 43, s. 113; 1973, No. 113, s. 43; 1974, No. 71, s. 7; 1975, No. 136, s. 18; 1978, No. 36, s. 8; 1981, No. 38, s. 2(b)
60 Assessment of permanent incapacity
(1)
Where an earner who suffers personal injury by accident does not completely recover from his incapacity due to the accident, as soon as the Corporation considers that (so far as the consequences of the injury are concerned) his medical condition is stabilised and all practicable steps have been taken towards his retraining and rehabilitation, the Corporation shall review his case and make an assessment in writing of—
(a)
The nature and extent of his permanent incapacity; and
(b)
Whether that permanent incapacity has resulted in a permanent loss or diminution of his capacity to earn; and
(c)
The percentage which that permanent loss or diminution (if any) bears to permanent total loss of his capacity to earn; and
(d)
The weekly amount of his permanent loss of earning capacity (if any), which amount shall be the appropriate percentage (being the percentage assessed under paragraph (c) of this subsection) of his relevant earnings for the time being; and
(e)
The weekly amount of earnings related compensation to be paid to him initially after the making of the assessment in respect of that permanent loss of earning capacity (if any), which amount shall, subject to subsection (8) of this section, be 80 percent of the weekly amount assessed under paragraph (d) of this subsection, or any greater weekly amount that may for the time being be payable to him in consequence of the injury in accordance with section 61 of this Act—
and shall pay him earnings related compensation in accordance with the assessment.
(2)
For the purposes of an assessment under this section the Corporation shall determine an earner’s permanent loss or diminution of his capacity to earn by comparing what he would have been earning in his pre-accident employment at the date of assessment if the accident had not happened, and what he is now capable of earning having regard to—
(a)
The opportunities for employment (if any) which, in the opinion of the Corporation, will reasonably exist for the injured person (whether as an employee or a self-employed person); and
(b)
The degree (if any) to which, having regard to those opportunities, his ability (or, in a case to which section 63 of this Act applies, his potential ability) to derive earnings has, in the opinion of the Corporation, been permanently diminished by reason of the incapacity.
(3)
In making its assessment under subsection (1) of this section, the Corporation shall have regard to section 59(3) and (8) of this Act and the said provisions shall apply to such an assessment as if any reference to temporary loss of earning capacity were a reference to permanent loss or diminution of capacity to earn and permanent loss of earning capacity.
(4)
Subject to subsection (8) of this section, if at any time or times after the making of an assessment under subsection (1)
(e)
of this section, it appears to the Corporation that the capacity of the person to earn has deteriorated as a result of the injury since the date on which the assessment was made, or was last determined in accordance with this subsection (as the case may be), the Corporation may determine that the weekly amount of compensation for the time being payable under this section shall be increased, as from the date of its determination, by such amount as, having regard to all the circumstances, it considers appropriate.
(5)
The earnings related compensation for the time being payable to the person under this section shall not be reduced by reason of any increase in his earning capacity.
(6)
Where an earner dies as a result of personal injury by accident in respect of which he has cover, if the Corporation has not made an assessment or determination under this section of the amount to be paid to him in respect of permanent total loss of earning capacity, and if any earnings related compensation is payable under section 65 of this Act to any dependant of the deceased person, the Corporation shall forthwith make an assessment in writing (which assessment shall be deemed, for the purposes of this section, to have been made at the date of his death) of the weekly amount that would have been payable to him under this section if he had not died but had suffered a permanent total loss of earning capacity and the assessment had been made at the date of his death under subsection (1) of this section.
(7)
The Governor-General may from time to time, by Order in Council, specify a percentage or amount by which (subject to subsection (8) of this section) the weekly amount for the time being of any earnings related compensation assessed or determined in accordance with this section (or of that compensation as for the time being increased in accordance with this subsection) shall increase. Any such Order in Council may be made in relation to all such compensation or to such class or classes thereof as may be specified in the order, and may prescribe any limitation as to its effect, whether by way of reference to any persons or classes of persons, or the time at which an accident has happened, or the date at which an assessment or determination under this section has been made, or (in the case of an assessment made under subsection (6) of this section) is deemed to have been made, or to the purposes for which the increase is to apply, or by way of any other specification, stipulation, condition, inclusion, or exclusion whatsoever. The Order in Council or any part or parts thereof may be made so as to come into effect on a date or dates to be specified therein in that behalf, being either the date of the Order in Council or any other date or dates, whether before or after the date thereof.
(8)
Notwithstanding anything in this section, the weekly amount of earnings related compensation that is, for the time being, payable to the injured person, or, in a case to which section 65 of this Act applies, would for the time being have been payable to him in accordance with this section shall not exceed the maximum amount for the time being prescribed for the purposes of section 59(10) of this Act.
Compare: 1972, No. 43, s. 114; 1975, No. 136, s. 18; 1978, No. 36, s. 8
61 Increased compensation for full time earner in certain cases
(1)
For the purposes of this section, an earner shall be deemed to be a full time worker only if—
(a)
The Corporation is satisfied that he was, at the time of the accident, working in employment which would have required him to work in paid employment for an average of at least 35 hours a week, and that he would have continued in such employment if the accident had not occurred; or
(b)
The Corporation, after having regard to the work history of the earner and to any special circumstances which may exist at or about the time of the accident, determines that the earner shall be regarded as a full time worker for the purposes of this section.
(2)
Where an earner who is a full time worker suffers any loss of earning capacity during any period in respect of which earnings related compensation is payable to him under section 59 or section 60 of this Act, if the rate of that compensation, calculated by reference to relevant earnings ascertained in accordance with section 53 or section 62(2)(a)(ii) or section 63(1)(c)(vi) of this Act would, apart from this section, be less than the minimum rate provided for under subsection (3) of this section, the rate of his earnings related compensation for the period shall be increased to that minimum rate:
Provided that, if the period is one to which section 59(4) of this Act applies, the weekly rate of earnings related compensation payable to an employee for the period shall not, by reason of this section, exceed the amount (if any) by which the weekly rate of his relevant earnings in relation to that period is in excess of the weekly rate of the earnings as an employee paid to him by his employer for that period.
(3)
The minimum weekly rate of earnings related compensation payable to an earner in the circumstances specified in subsection (2) of this section shall be,—
(a)
In relation to total loss of earning capacity, the aggregate sum of—
(i)
The amount of $154.50 in respect of the earner; and
(ii)
The amount of $11.60 in respect of the spouse of the earner while the spouse is totally dependent on the earner; and
(iii)
The amount of $5.80 in respect of each child of the earner while that child is for the time being totally dependent on the earner:
Provided that the Governor-General may, from time to time by Order in Council, vary any amount or amounts specified in this paragraph:
Provided also that, where the aggregate sum so prescribed would exceed 90 percent of the amount of the weekly rate of his relevant earnings, the weekly rate of earnings related compensation payable to the earner shall be 90 percent of the amount of the weekly rate of his relevant earnings:
(b)
In relation to partial loss of earning capacity, calculated in accordance with the following formula:
where—
(i)
a is the amount of the weekly rate of his loss of earning capacity as determined under section 59 or section 60 of this Act; and
(ii)
b is the amount of the weekly rate of his relevant earnings; and
(iii)
c is the minimum weekly rate of earnings related compensation that would be payable to him under paragraph (a) of this subsection for total loss of earning capacity.
(4)
For the purposes of this section, a spouse or child of the earner shall be deemed to be totally dependent on him only if that spouse or child was totally dependent on him at the time of the accident and only while such a spouse or child would, in the opinion of the Corporation, have been continuously totally dependent on him if he had not suffered the injury.
(5)
In making an assessment under section 60 of this Act of the amount to be paid or that would have been paid to an earner in respect of permanent loss of earning capacity in the circumstances specified in subsection (2) of this section, the Corporation shall have regard to whether, at the date at which the assessment is made or (in the case of an assessment made under section 60(5) of this Act) is deemed for the purposes of the said section 60 to be made, the spouse (if any) and any child or children of the earner would, in the opinion of the Corporation, have been totally dependent on the earner if he had not suffered the injury, and shall specify the extent (if any) by which that amount is to be reduced if and when any such spouse or child would thereafter, in the opinion of the Corporation, have ceased to be totally dependent on the earner had he not suffered the injury.
(6)
This section shall not apply to an earner where relevant earnings are ascertained under section 62 of this Act.
Compare: 1972, No. 43, s. 116; 1975, No. 136, s. 19(1)
62 Earnings related compensation where employee under 20, etc.
(1)
This section shall apply to the following employees, namely—
(a)
An employee under the age of 20 years; or
(b)
An apprentice under the Apprentices Act 1948; or
(c)
An apprentice or improver under an award or industrial agreement; or
(d)
An employee employed under a contract of service under which he is expressly required to undergo any training, instructions, or examination for the purpose of becoming qualified for the occupation to which the contract of service relates.
(2)
Notwithstanding anything in section 53 of this Act, where an employee to whom this section applies suffers personal injury by accident in respect of which he has cover under this Act, if in terms of his employment he would have been entitled at subsequent stages to increments in earnings, and while he remains alive,—
(a)
For the purpose of assessing the amount of earnings related compensation for the time being payable to him under section 59 or section 60 of this Act, his relevant earnings shall, subject to subsections (4) and (5) of this section,—
(i)
At each stage until he attains the age of 20 years, or would if he had not suffered the injury complete his apprenticeship, or cease to be an improver, or become qualified as aforesaid, as the case may be, be deemed to be the weekly sum (exclusive of any payment for overtime) which, if he had not suffered the incapacity, he would in the opinion of the Corporation have been earning at that stage:
(ii)
At the stage thereafter be deemed to be the weekly sum (exclusive of any payment for overtime) which, if he had not suffered the incapacity, he would in the opinion of the Corporation have been earning immediately after he had attained the age of 20 years, or had completed his apprenticeship, or had ceased to be an improver, or had become qualified as aforesaid, as the case may be:
Provided that, for the purposes mentioned in paragraphs (a), (b), and (c) of section 53(7) of this Act, but subject to subsection (5) of this section and to any limitation as to the effect of any Order in Council made under section 53(6) of this Act, the said section 53(6) shall apply to that weekly sum (but only in relation to any such Order in Council which is made so as to come into effect, on or after the commencement of that stage) as if that sum were relevant earnings assessed under section 53 of this Act:
(b)
If, during any of the stages mentioned in paragraph (a)(i) of this subsection, the Corporation makes an assessment under section 60(1) of this Act of the amount payable to the injured person in respect of permanent loss of earning capacity, it shall assess the amount to be paid under that assessment at that stage and at each of the subsequent stages mentioned in that paragraph on the basis of the rates of pay current at the time when the assessment is made but otherwise (subject to section 60(7) of this Act) in accordance with that paragraph.
(3)
Where an employee to whom this section applies dies as a result of personal injury by accident and an assessment has to be made under section 60(5) of this Act, paragraphs (a) and (b) of subsection (2) of this section shall apply for the purposes of that assessment as if the employee remained alive at the date of the assessment and at all subsequent material dates.
(4)
Where the amount of the employee’s relevant earnings ascertained in accordance with the foregoing provisions of this section would, for the time being, be less than his relevant earnings ascertained in accordance with section 53 of this Act, his relevant earnings shall, for the time being, be ascertained in accordance with the said section 53.
(5)
Notwithstanding anything in this section, where the relevant earnings of an employee as determined under any of the foregoing provisions of this section would exceed the maximum amount prescribed for the purposes of this section, that prescribed amount shall be the amount of his relevant earnings:
Provided that the Corporation may fix the relevant earnings at such greater amount as it thinks fit (not exceeding the amount ascertained in accordance with section 53 of this Act) if it is satisfied that, were it not for the injury, the employee would have continued to earn throughout a normal working life at a rate not less than that greater amount.
(6)
The amount prescribed for the purposes of this section shall be the sum of $386 or such other amount as may from time to time be prescribed for those purposes by the Governor-General by Order in Council.
(7)
This section shall not apply to an employee while a higher rate of compensation would be payable to him under section 63 of this Act.
Compare: 1972, No. 43, s. 117; 1975, No. 136, ss. 18(4)(b), 20
63 Compensation for loss of potential earning capacity in certain cases
(1)
Where, as a result of incapacity due to personal injury by accident, a person suffers any loss of potential earning capacity, compensation shall be payable in accordance with and subject to this section, if—
(a)
The accident occurred in New Zealand; and
(b)
The person was at the time of the accident ordinarily resident in New Zealand; and
(c)
At the date of the accident, the person—
(i)
Had not attained the age of 16 years; or
(ii)
Was a pupil enrolled for secondary education or special education as those terms are defined in section 2 of the Education Act 1964; or
(iii)
Was actively studying or training for an occupation, career, or profession which he intended to take up on completing his study or training, and satisfies the Corporation to this effect; or
(iv)
Was not in regular work in paid employment in any occupation, career, or profession, and had completed a course of secondary education or special education within a period of 6 months before the date of the accident; or
(v)
Had completed his study or training for an occupation, career, or profession, and satisfies the Corporation that he intended to enter upon that occupation, career, or profession within 6 months after so completing his study or training; or
(vi)
Having completed his study or training for an occupation, career, or profession, had entered upon that occupation, career, or profession, and the fixing of his relevant earnings under subsection (5) of this section would result in a higher rate of compensation being payable to him for the time being, under section 59 of this Act, than would otherwise be so payable:
Provided that this subparagraph shall not apply in a case where the relevant earnings for the time being applicable (apart from this section) for the purposes of the said section 59 would be less than the amount prescribed for the purposes of this section, unless the Corporation is of the opinion that those relevant earnings would have reached that amount if the accident had occurred 24 months after the date on which the person entered upon that occupation, career, or profession, or within 12 months after the date of the accident (whichever is the earlier).
(2)
Where compensation for loss of potential earning capacity is so payable under this section, an assessment of the amount payable shall, subject to subsections (3) and (4) of this section, be made in accordance with section 59 or section 60 of this Act as if the injured person were an earner whose relevant earnings were the amount determined under subsection (5) of this section.
(3)
Any assessment in accordance with subsection (2) of this section shall be made as at such date, being not earlier than the date on which the person attains the age of 16 years, as may be agreed upon by the Corporation and the injured person or his guardian, or (failing agreement) as the Corporation may fix having regard to all the circumstances of the case.
(4)
No compensation for loss of potential earning capacity shall become payable under this section in respect of any period which is before the date as at which an assessment in accordance with subsection (2) of this section is made, and in fixing the amount of compensation payable until a permanent assessment under section 60 of this Act has been made, the Corporation may have regard to the extent to which the person is receiving rehabilitation assistance, or assistance from any scholarship or bursary.
(5)
Subject to subsection (7) of this section, in any case to which this section applies, the relevant earnings of the injured person shall be deemed to be $190 or such other amount as may from time to time be prescribed for the purposes of this section by the Governor-General by Order in Council:
Provided that the Corporation may from time to time fix the relevant earnings of the injured person at such greater amount, being not more than 50 percent in excess of the amount prescribed, as it thinks fit, in any case where the injured person is a person to whom any of the subparagraphs of subsection (1)(c) of this section applies:
Provided also that, in any case where the injured person is an earner whose relevant earnings ascertained in accordance with section 53 of this Act would be more than the amount so prescribed for the purposes of this section, the Corporation may fix the relevant earnings at such greater amount as it thinks fit (not exceeding the amount so ascertained) if it is satisfied that, were it not for the injury, the person had the capacity to continue to earn throughout a normal working life at a rate not less than that greater amount.
(6)
This section shall not apply to an earner while a higher rate of compensation would be payable to him under section 62 of this Act.
(7)
Nothing in this section shall affect the entitlement of any earner to earnings related compensation in accordance with section 59 of this Act in respect of any period before the date as at which an assessment in accordance with subsection (2) of this section is made.
Compare: 1972, No. 43, s. 118; 1973, No. 113, s. 45; 1974, No. 71, s. 8; 1975, No. 136 s. 21
64 Compensation for loss of earnings by reason of medical attention
Where an earner suffers personal injury by accident, in respect of which he has cover, and after the expiration of 6 days from the date of the accident he has resumed or resumes work but still requires medical or surgical treatment and suffers a loss of earnings by reason of requiring to be away from his work for that treatment, the Corporation shall pay him earnings related compensation in respect of that loss in accordance with this Part of this Act.
Compare: 1972, No. 43, s. 109
65 Earnings related compensation payable to surviving dependent spouses, children, and other dependants
(1)
For the purposes of this section and sections 66(2), 82, 85 and 91 of this Act, the expression “spouse”
means either of a man or woman who—
(a)
Are married to each other; or
(b)
Not being married to each other, have cohabited immediately preceding the date of death of the deceased person, and, in the opinion of the Corporation, have entered into a relationship in the nature of marriage.
(2)
Subject to this Act, where an earner dies as a result of personal injury by accident in respect of which the earner had cover, the Corporation shall pay earnings related compensation—
(a)
To the deceased person’s spouse, if she or he was dependent on the deceased person immediately before the time of the accident until the date on which earnings related compensation ceases under section 66(2) of this Act to be payable to the spouse on account of age or until her or his sooner death, marriage, or remarriage,—
(i)
While she or he would, in the opinion of the Corporation, have been totally dependent on the deceased person if that person were living, at the rate of three-fifths of the earnings related compensation that would for the time being have been payable to the deceased person under section 60 of this Act had the deceased person remained alive but suffered a permanent total loss of earning capacity:
(ii)
While she or he would, in the opinion of the Corporation, have been partially dependent on the deceased person if that person were living, at such lesser rate as the Corporation thinks proper having regard to the degree to which, in the opinion of the Corporation, the spouse would be so dependent:
(b)
To each child of the deceased person while the child remains a minor,—
(i)
While the child would, in the opinion of the Corporation, have been totally dependent on the deceased person if that person were living, at the rate of one-fifth of the earnings related compensation that would for the time being have been payable to the deceased person under section 60 of this Act had the deceased person remained alive but suffered a permanent total loss of earning capacity:
Provided that, after both parents of the child have died, earnings related compensation under this subparagraph shall be payable to the child at the rate fixed by subsection (4) of this section:
(ii)
While the child would, in the opinion of the Corporation, have been partially dependent on the deceased person if that person were living, at such lesser rate as the Corporation thinks proper having regard to the degree to which, in the opinion of the Corporation, the child would have been so dependent:
(c)
To each other person, if any, who was totally or partially dependent on the deceased person immediately before the time of the accident, at such rate and for such period as the Corporation thinks fit, having regard to—
(i)
The extent to which the person would, in the opinion of the Corporation, for the time being have been dependent on the deceased person if the deceased person were living; and
(ii)
The maximum rates of compensation payable to a spouse or child of the deceased person, and the maximum periods for which earnings related compensation is payable to those persons; and
(iii)
All other relevant circumstances.
(3)
Where a spouse of the deceased person was not dependent on the deceased person at the time of the accident but became dependent on him or her at any time thereafter before his or her death, the Corporation may, if it thinks fit, and for such period as it thinks fit, treat that spouse as having been dependent on the deceased person at the time of the accident, and the foregoing provisions of this section shall apply accordingly.
(4)
The rate of earnings related compensation payable under this section to a child of a deceased person after both of the child’s parents have died shall be two-fifths of the earnings related compensation that would for the time being have been payable to the deceased person under section 60 of this Act had he remained alive but suffered a permanent total loss of earning capacity.
(5)
Notwithstanding section 66 of this Act, where a surviving spouse was born before her or his spouse and has remained entitled to earnings related compensation until the date on which earnings related compensation ceases under the said section 66 to be payable to her or him on account of age, such compensation shall thereafter be paid to her or him in accordance with subsection (2) of this section as if that date did not occur until the date on which such compensation would have ceased under section 66 of this Act to be payable to her or his spouse, if that spouse had remained alive.
(6)
The Corporation may, in its discretion,—
(a)
Continue to pay earnings related compensation to any child of the deceased person after the expiration of the period for which it is payable under the foregoing provisions of this section; and
(b)
Pay earnings related compensation to any child of the deceased person who was not a minor at the time of the death of the deceased person but was dependent on the deceased person immediately before the death of the deceased person,—
if and to the extent that the Corporation considers that payments under this subsection are needed for the education of that child or in special circumstances for the maintenance of that child.
(7)
Notwithstanding anything in this section, where the total amount of earnings related compensation payable pursuant to this section exceeds the maximum allowable amount, being the amount of the earnings related compensation that would for the time being have been payable to the deceased person under section 60 of this Act had he or she remained alive but suffered a permanent total loss of earning capacity, the Corporation shall pay compensation of that maximum allowable amount to the members of the class comprising the persons eligible in that case for compensation in accordance with subsection (2) of this section or to some of the members of that class to the exclusion of the other or others of them in such shares and proportions as the Corporation thinks fit, having regard to the relative needs of the various members of the class and all other relevant considerations:
Provided that no person shall receive more under this subsection than he would be entitled to receive under subsection (2) of this section if the compensation payable under that subsection to the members of that class did not exceed that maximum allowable amount.
(8)
For the purposes of subsection (7) of this section, in considering questions relating to dependency and relative needs, the Corporation shall have regard to all relevant factors, and may, whenever it considers that it is just, take into account all or any of the following:
(a)
Any gain to any person that is consequent on the death of the deceased person:
(b)
Circumstances that have arisen after the date of the death of the deceased person:
(c)
The needs of each person concerned.
(9)
Except as provided in section 63 of this Act, where a person dies as a result of personal injury by accident in respect of which he has cover, no earnings related compensation shall be payable under this section unless, at the time of the accident, that person had cover as an earner.
(10)
This section shall apply from the date of the commencement of this Act, whether the personal injury by accident occurred before or after that date.
Compare: 1972, No. 43, s. 123; 1973, No. 113, s. 46
66 Upper age limit for payment of earnings related compensation
(1)
Earnings related compensation shall cease, on account of age, to be payable under section 59 or section 60 of this Act to an earner who suffers personal injury by accident in respect of which he has cover—
(a)
On the date on which he attains the age of 65 years, if the accident occurs before he attains the age of 60 years:
(b)
On the date 5 years after the day of the accident, if the accident occurs after he attains the age of 60 years but before he attains the age of 65 years:
(c)
On the date on which he attains the age of 70 years, if the accident occurs after he attains the age of 65 years but before he attains the age of 69 years:
(d)
On the date one year after the day of the accident, if the accident occurs after he attains the age of 69 years:
Provided that if, at the date of the accident, the earner is in employment in respect of which a retiring age in excess of 65 years is fixed by any Act, the date on which earnings related compensation shall so cease to be payable to him shall be the date determined under the foregoing provisions of this subsection or the date on which he attains the retiring age so fixed, whichever is the later.
(2)
Subject to section 65 of this Act, earnings related compensation shall cease, on account of age, to be payable under the said section 65 to the surviving spouse or child or other dependant of an earner who dies as a result of personal injury by accident in respect of which the earner had cover—
(a)
On the date on which the surviving spouse or child or other dependant attains the age of 65 years, if she or he was under the age of 60 years at the date of the accident:
(b)
On the date 5 years after the day of the accident, if the accident occurs after the surviving spouse or child or other dependant attains the age of 60 years but before she or he attains the age of 65 years:
(c)
On the date on which the surviving spouse or child or other dependant attains the age of 70 years, if the accident occurs after she or he attains the age of 65 years but before she or he attains the age of 69 years:
(d)
On the date one year after the day of the accident, if the accident occurs after the surviving spouse or child or other dependant attains the age of 69 years.
Compare: 1972, No. 43, s. 128; 1973, No. 113, s. 48
67 Power to reduce, postpone, or cancel earnings related compensation where person in hospital or penal institution
(1)
The Corporation may in its discretion reduce, postpone, or cancel payments of earnings related compensation to any person in respect of any period during which the person is being maintained, otherwise than at his own expense, in—
(a)
Any hospital as defined in section 88 of the Social Security Act 1964; or
(b)
Any hospital as defined in section 2 of the Mental Health Act 1969; or
(c)
Any penal institution as defined in section 2 of the Penal Institutions Act 1954; or
(d)
Any other institution to which the Governor-General, by Order in Council, declares that this section shall apply.
(2)
No earnings related compensation shall be payable in respect of any period for which payments thereof are cancelled under subsection (1) of this section.
Compare: 1972, No. 43, s. 129; 1973, No. 113, s. 49
68 Compensation payable to persons outside New Zealand
(1)
Notwithstanding section 60 of this Act, whenever any person who is in receipt of, or is entitled to receive, earnings related compensation is absent from New Zealand for more than 12 months, the Corporation shall, from time to time, while he remains absent from New Zealand, review his circumstances, and may, having regard to such of the matters set out in subsection (2) of this section as are relevant, in its discretion, upon such terms and conditions and in respect of any period as it thinks fit, continue, commute, reduce, postpone, or cancel payments of earnings related compensation while the person remains absent from New Zealand.
(2)
In exercising its discretion under subsection (1) of this section, the Corporation may have regard to all or any of the following matters:
(a)
The nature of the injuries suffered:
(b)
The nature and extent of the loss of earning capacity:
(c)
Earnings before and after the date of the accident:
(d)
The person’s work history in New Zealand, the period of his residence in New Zealand before the time of the accident, and any limitation existing at the time of the accident as to his ability to continue to work or reside in New Zealand:
(e)
The reasons for leaving or remaining outside New Zealand:
(f)
The circumstances in which the person is living outside New Zealand, including the extent to which the person is or may be entitled to any benefit or remedy, apart from this Act, in respect of the injury or, as the case may be, the death, whether in accordance with the law of the country in which he is now residing, or by reason of any indemnity or policy of insurance, or for any other reason:
(g)
The ability of the person to work outside New Zealand:
(h)
The extent to which the spouse or child or other dependant would from time to time have been dependant on the deceased person if that person had not died as a result of the injury:
(i)
Such other relevant matters as the Corporation thinks fit.
(3)
No earnings related compensation shall be payable in respect of any period for which payments thereof are cancelled under subsection (1) of this section.
Compare: 1972, No. 43, s. 130
69 Extension of entitlement to earnings related compensation
(1)
Where a person has ceased to be an earner he shall be deemed to continue to be an earner if he suffers personal injury by accident during the period or periods specified in subsection (2) of this section, and he shall be entitled to be paid earnings related compensation in accordance with the provisions of this Act:
Provided that no payment of earnings related compensation shall extend beyond the date on which he attains the age of 65 years.
(2)
The period or periods during which he shall be deemed to continue to be an earner shall be a period not exceeding 13 weeks, which period shall be the 7 days after the day on which he ceased, but for this section, to be an earner, plus a further 7 days for each complete 30 days (if any) during the 12 months immediately before the day on which he ceased, but for this section, to be an earner whether or not he was an earner continuously during those 12 months:
Provided that the Corporation may in its discretion determine that the person shall be deemed to continue to be an earner for such further period (if any) as the Corporation considers reasonable, having regard to that person’s employment history, state of health, and age, and to the circumstances under which he ceased to be an earner.
Compare: 1972, No. 43, s. 59; 1973, No. 113, s. 18 1974, No. 71, s. 3(2); 1978, No. 36, s. 3(1)
Lump Sum Compensation
70 Lump sum payment to widow or widower on remarriage
Where the earnings related compensation that is payable to a dependent widow or widower under section 65 of this Act ceases by reason of her or his remarriage, the Corporation shall pay to her or him,—
(a)
If she or he is under 63 years of age at the date of the remarriage, a lump sum equal to the amount of the earnings related compensation that would be payable to her or him under that section during a period of 2 years at the rate applicable at the date of the remarriage:
(b)
If she or he has attained the age of 63 years but is under the age of 65 years at the date of the remarriage, a lump sum equal to the amount of the earnings related compensation that would be payable to her or him under that section during the period between the date of the remarriage and the date on which she or he will attain the age of 65 years at the rate applicable at the date of the remarriage.
Compare: 1972, No. 43, s. 125
71 Commutation of periodic payments to lump sum in very exceptional circumstances
(1)
The Corporation may, in its discretion in very exceptional circumstances, on such terms as to medical examination as the Corporation may impose, commute periodic payments of earnings related compensation being made to any person under section 59 or section 60 or section 65 of this Act wholly or partly into a lump sum payment to that person.
(2)
Such a commutation shall not normally be made if the effect thereof will be that the person concerned will need support thereafter out of money appropriated by Parliament in excess of the support (if any) that he is so receiving immediately before the date of the commutation.
(3)
Notwithstanding the foregoing provisions of this section, the Corporation may in its discretion commute periodic payments of earnings related compensation payable to a person where circumstances are being reviewed under section 68(1) of this Act.
Compare: 1972, No. 43, s. 133
Part VI Other Compensation
72 Conveyance for immediate medical attention
(1)
Subject to any regulations made under this Act, this section shall apply where a person suffers personal injury by accident in respect of which he has cover and the injury necessitates his immediate removal for medical attention to a hospital, or to a medical practitioner and then to a hospital or his residence, or to his residence (medical attention away from his residence not being required).
(2)
Where the accident happens to an employee in the course of his employment—
(a)
The employer shall forthwith at his own expense provide or arrange the necessary conveyance for the employee’s removal for medical attention as mentioned in this section and, subject to this section, shall pay all reasonable expenses for meals and lodging incurred by or on behalf of the employee during the course of such removal:
(b)
Where any employee has been removed in accordance with this section, his removal shall be deemed to have been necessitated for the purpose of obtaining medical attention:
(c)
Any employer who, without reasonable cause, fails to comply with paragraph (a) of this subsection commits an offence against this Act:
(d)
If the accident happens in New Zealand, the Corporation shall reimburse the employer for all reasonable expenses he incurs under paragraph (a) of this subsection, or, to the extent that they have not been met by the employer, shall pay them:
(e)
If the accident happens outside New Zealand, the Corporation may, at its discretion, reimburse the employer for any reasonable expenses incurred by him under paragraph (a) of this subsection, or so much thereof as it thinks fit, having regard to the provisions of any statute, award, agreement, or terms and conditions of employment by which the employer is or may be required to provide or arrange transport, accommodation, or any other form of benefit or care for an employee injured by accident outside New Zealand.
(3)
Where the accident happens in New Zealand to a person (otherwise than as an employee in the course of his employment), and the injury necessitates his immediate removal for medical attention as mentioned in this section, the Corporation shall compensate the injured person by paying him, in any case where a charge for the removal is payable, an amount equal to the cost that would reasonably be involved in removing him for such medical attention.
(4)
Where the accident happens outside New Zealand to a person (otherwise than as an employee in the course of his employment), and the injury necessitates his immediate removal for medical attention as mentioned in this section, the Corporation may, on such terms and conditions as it thinks fit, compensate the injured person by paying him, in any case where a charge for the removal is payable, an amount equal to the cost that by New Zealand standards would reasonably be involved in removing him for such medical treatment.
Compare: 1972, No. 43, s. 107
73 Conveyance for subsequent medical attention
(1)
Subject to any regulations made under this Act, this section shall apply where a person suffers personal injury by accident in respect of which he has cover and a registered medical practitioner certifies that he is attending the injured person or has examined him, and that either the injured person should receive medical or surgical treatment in respect of the injury which is not available at the place where the medical practitioner attends or examines the injured person or the injured person is required to travel to receive that treatment.
(2)
Where the injured person is in New Zealand and the medical or surgical treatment is to be given in New Zealand, the Corporation, on each occasion on which it is necessary for him to travel to receive that treatment, shall compensate the injured person by paying him the reasonable travelling expenses he incurs (including the cost for meals and lodging necessarily obtained by him):
Provided that—
(a)
Except where the Corporation otherwise approves or a registered medical practitioner certifies that no available public passenger transport service is suitable, the transport expenses so payable shall be calculated at the lowest rate at which the person can be transported to and from that place by any available public passenger transport service:
(b)
No such expenses for transport, meals, or lodging shall be payable by the Corporation if the distance from the injured person’s place of residence, or his place of employment (if any), or any hospital or other place where he is temporarily accommodated, whichever in the circumstances is the most appropriate point of departure, to the place at which the medical or surgical treatment is to be given is less than 8 kilometres, unless and to the extent that the Corporation, having regard to the age and condition of the injured person and to any other circumstances which it may consider relevant, decides that the expenses or some part thereof should be paid under this subsection.
(3)
Where the injured person is not in New Zealand, or where the medical or surgical treatment is to be given outside New Zealand, the Corporation may, and upon such terms and conditions as it thinks fit, compensate the injured person by paying him the reasonable travelling expenses (including the cost for meals and lodging necessarily obtained by him) he incurs to receive such treatment, and in determining what amount (if any) it should pay to the injured person under this subsection the Corporation may have regard to the provisions of any statute, award, agreement, or terms and conditions of employment by which the injured person’s employer is or may be required to meet such expenses and costs.
Compare: 1972, No. 43, s. 108
74 Conveyance by ambulance
Notwithstanding sections 72 and 73 of this Act, where a person suffers personal injury by accident in New Zealand, and the person has cover in respect of the injury, and it is necessary, as a result of the injury, to transport the injured person in an ambulance, the Corporation shall pay the reasonable costs of such transportation:
Provided that in respect of such transportation by any ambulance service provided by or under contract to any hospital board constituted under the Hospitals Act 1957, the Corporation shall pay the costs to the Government in trust under section 52 of the Public Finance Act 1977, in either case to be paid out as directed by the Minister of Health for the benefit of ambulance services.
Compare: 1972, No. 43, s. 109a; 1978, No. 136, s. 10(1)
75 Medical treatment
(1)
Subject to any regulations made under this Act, where a person suffers personal injury by accident in respect of which he has cover, if, as a result of the personal injury, he requires to obtain a medical certificate for the purposes of this Act, or requires any treatment to which this section applies, the Corporation shall pay the cost thereof so far as—
(a)
That person is not entitled to any benefit under Part II of the Social Security Act 1964 in respect thereof; and
(b)
The Corporation considers that the amount to be paid by it is reasonable by New Zealand standards taking into account any contribution made by the Corporation under subsection (3) of this section.
(2)
This section shall apply to any of the following treatments in New Zealand (not being treatment in respect of damage to natural teeth within the meaning of section 76 of this Act), whether or not the person requiring the treatment is a person entitled to claim the benefits provided by Part II of the Social Security Act 1964:
(a)
Treatment of the person as a patient in any hospital as defined in section 88 of the Social Security Act 1964:
(b)
Treatment of the person as a patient in any hospital as defined in section 2 of the Mental Health Act 1969:
(c)
Treatment of the person by a registered medical practitioner:
(d)
Treatment by the provision of any pharmaceutical requirement which is specified in any Drug Tariff for the time being in force under section 99 of the Social Security Act 1964 and which is prescribed for the person by a registered medical practitioner:
(e)
Treatment by the provision of any service, treatment, or assistance for the person for which a supplementary benefit is provided under section 116 of the Social Security Act 1964:
(f)
Treatment by the provision of any artificial limb or aid or prosthetic appliance which is prescribed for the person by a registered medical practitioner and of its normal repair or renewal so far as the cost thereof is payable by the person and is not a cost in respect of treatment to which paragraph (e) of this subsection applies.
(3)
Subject to any regulations made under this Act, the Corporation may enter into arrangements with employers and other persons in respect of the provision of medical and first aid assistance in appropriate places, and may contribute towards the cost thereof.
(4)
Subject to any regulations made under this Act, where a person suffers personal injury by accident in respect of which he has cover, if as a result of the personal injury he requires treatment by the provision of any pharmaceutical requirement which is not specified in any Drug Tariff for the time being in force under section 99 of the Social Security Act 1964 and which is prescribed for the injured person by a registered medical practitioner, the Corporation may pay the whole or such part as it thinks fit of the cost of that treatment.
(5)
Subject to any regulations made under this Act, upon receipt by the Corporation of a statement by a registered medical practitioner in New Zealand, given in a form approved by the Corporation,—
(a)
Certifying as to any services afforded by that practitioner to any person and the amount claimed in respect thereof; and
(b)
Certifying that he considers that the services were required as a result of personal injury by accident; and
(c)
Containing the name and address of that person and such other information as may be required by that form to be furnished,—
the Corporation may, if it thinks fit, notwithstanding anything in this Act, pay the amount so claimed for the services or so much thereof as it considers it is reasonable for it to pay by New Zealand standards without further inquiry as to whether or not the services were required as a result of personal injury by accident in respect of which the person had cover and without further inquiry as to whether he was entitled to compensation under this Act.
(6)
Subject to any regulations made under this Act, upon receipt by the Corporation of a statement by a person in New Zealand duly qualified to provide radiological or physiotherapy services or other paramedical services, given in a form approved by the Corporation,—
(a)
Certifying as to any such services (being services which he was duly qualified to provide) afforded by him personally or by or under the direct supervision of himself or another person duly qualified to provide the services, and the amount claimed in respect thereof; and
(b)
Certifying that the person to whom the services were afforded was referred by a registered medical practitioner as a case of personal injury by accident; and
(c)
Containing the name and address of that person and such other information as may be required by that form to be furnished—
the Corporation may, if it thinks fit, notwithstanding anything in this Act, pay the amount so claimed for the services or so much thereof as it considers it is reasonable for it to pay by New Zealand standards without further inquiry as to whether or not the services were required as a result of personal injury by accident in respect of which the person to whom the services were afforded had cover and without further inquiry as to whether he was entitled to compensation under this Act.
(7)
A payment made in reliance on a statement given pursuant to subsection (5) or subsection (6) of this section, shall not (either in relation to that payment or in relation to any claim for other compensation or for rehabilitation assistance under this Act) operate as an admission by the Corporation, or preclude the Corporation from denying, that the person in respect of whom the services were afforded had suffered personal injury by accident in respect of which he had cover or that he was entitled to compensation under this Act.
(8)
Subject to any regulations made under this Act, where a person suffers personal injury by accident in respect of which he has cover, and the Corporation, after having regard to all the circumstances, including the physical and mental condition of that person, the nature and place of his employment (if any), and the place or places of residence of himself and of his dependants (if any) and of the person or persons (if any) on whom he may be dependent, considers that it is necessary or reasonable that any medical certificate required for the purposes of this Act should be obtained outside New Zealand or that any treatment required as a result of the personal injury (being hospital treatment, medical treatment, radiological, physiotherapy, or other paramedical treatment, treatment by the provision of any pharmaceutical requirement, or treatment by the provision of any artificial limb or aid or prosthetic appliance and of its normal repair or renewal) should be given outside New Zealand, the Corporation may, at its discretion, and subject to such terms and conditions (if any) as it thinks fit to impose, pay the cost thereof, or so much of the cost thereof as it thinks fit:
Provided that, where a person suffers personal injury by accident in New Zealand, no payment shall be made pursuant to the foregoing provisions of this subsection in respect of any such treatment outside New Zealand, unless the approval of the Corporation to the treatment being given outside New Zealand has been obtained before the treatment is given, or there are special circumstances that, in the opinion of the Corporation, justify such a payment being made:
(9)
In the exercise of its discretion under subsection (8) of this section, the Corporation may have regard to the extent to which the person may be entitled to any benefit or remedy, apart from this Act, in respect of the cost of the certificate or treatment, whether in accordance with the law of the country where the accident occurs or in which the certificate or treatment is given, or by reason of any indemnity or policy of insurance, or for any other reason, and may also have regard to the extent to which the cost of the certificate or treatment would be reasonable by New Zealand standards.
Compare: 1972, No. 43, s. 111; 1975, No. 136, s. 16
76 Damage to natural teeth
(1)
For the purposes of this section, the expression “natural teeth”
includes the supporting associated oral tissues.
(2)
Subject to subsection (3) of this section and to any regulations made under this Act, where as a result of personal injury by accident in respect of which a person has cover, he suffers damage to his natural teeth, the Corporation shall pay the cost of repairing the teeth or of replacing them (as appropriate) and the cost of any normal continuing repair, renewal, or replacement, so far as—
(a)
That person is not entitled to any benefit under Part II of the Social Security Act 1964 in respect thereof; and
(b)
The Corporation considers that the amount to be paid by it is reasonable by New Zealand standards:
Provided that the Corporation may refuse to make any such payment unless notice of the damage is given by that person as soon as practicable after the accident, in accordance with section 93 of this Act.
(3)
No payment in respect of any damage to natural teeth so suffered shall be made by the Corporation—
(a)
If the damage resulted from the use of the teeth; or
(b)
To the extent that the damage was attributed to their deteriorated condition.
(4)
Where prior to the commencement of this Act, a person suffered damage to his natural teeth and the Corporation had accepted that he was entitled to cover in respect of that damage under section 110 of the Accident Compensation Act 1972, subsection (2) of this section shall apply to that person in respect of any normal continuing repair, renewal, or replacement carried out after the commencement of this Act.
Compare: 1972, No. 43, s. 110
77 Damage to artificial limbs or aids or clothing
(1)
Subject to subsection (3) of this section and to any regulations made under this Act, where as a result of an accident a person suffers damage to or loses any artificial limb or aid or clothing or spectacles being used or worn by him at the time of the accident the Corporation shall pay the reasonable cost of repairing or, if necessary, replacing the artificial limb or aid or clothing or spectacles in any case where a charge is payable for those services.
(2)
Subject to subsection (3) of this section and to any regulations made under this Act, where as a result of an accident a person suffers damage to or loses any contact lens being worn by him at the time of the accident, the Corporation shall pay—
(a)
If a replacement contact lens is supplied by way of a supplementary benefit under section 116 of the Social Security Act 1964, so much (if any) of the cost of the replacement as is, in accordance with that section and the regulations made thereunder, recoverable from the injured person:
(b)
If a replacement contact lens is not supplied by way of a supplementary benefit under section 116 of that Act, a sum which (in the opinion of the Corporation) would represent the reasonable cost of replacing the contact lens by spectacles, or a sum which (in the opinion of the Corporation) would represent the reasonable cost of replacing the contact lens by a replacement lens (whichever is the less).
(3)
No payment in respect of any damage or loss so suffered by any person shall be made by the Corporation under this section unless—
(a)
The person also suffers personal injury by accident in respect of which he has cover and for which medical or hospital treatment is required or compensation is payable; and
(b)
The expense in respect of the repair or replacement is incurred in the lifetime of that person; and
(c)
Notice of the damage or loss is given by the person, as soon as practicable after the accident in accordance with section 93 of this Act.
Compare: 1972, No. 43, s. 110; 1973, No. 113, s. 42; 1975, No. 136, s. 15
78 Compensation for non-economic loss related to permanent loss or impairment of bodily function
(1)
Where a person suffers personal injury by accident in respect of which he has cover and the injury involves the permanent loss or impairment of any bodily function (including the loss of any part of the body), the Corporation shall pay him compensation in a lump sum or lump sums assessed in accordance with this section, but not exceeding in the aggregate $17,000; and in assessing the extent of the permanent loss or impairment deduction shall be made in respect of any demonstrable, pre-existing, related permanent loss or impairment of that bodily function which can be established by the Corporation.
(2)
Where the injury involves a permanent loss or impairment specified in the First Schedule to this Act, the aggregate amount of the lump sum or lump sums to be paid under subsection (1) of this section in respect of that loss or impairment shall be the amount representing the appropriate percentage specified in that Schedule of $17,000.
(3)
Where the injury involves a permanent loss or impairment of the function of a part of the body to which the First Schedule to this Act relates but no lump sum is payable under subsection (2) of this section in respect of that loss or impairment, the Corporation shall determine, in the light of the medical and other evidence available to it and having regard to the severity of that loss or impairment and to the percentage specified in that Schedule, whether or not any compensation should be paid under subsection (1) of this section in respect of that loss or impairment; and, if it determines that any compensation should be so paid, it shall assess the percentage of $17,000 which it considers appropriate for that loss or impairment; and the aggregate amount of the lump sum or lump sums (if any) to be so paid shall be the amount representing that percentage of $17,000.
(4)
Where the Corporation is satisfied that, as a result of the injury, the person has suffered a permanent loss or impairment of a bodily function (including the loss of any part of the body), but no lump sum is payable under subsection (2) or subsection (3) of this section in respect of that loss or impairment, the Corporation shall assess and pay to him, having regard to the medical and other evidence available to it, such lump sum or lump sums (if any) as it considers appropriate for a permanent loss or impairment of that nature, but not exceeding $17,000 in the aggregate.
(5)
Where the person suffers by the same accident more than one of the permanent losses and impairments in respect of which compensation is payable under this section, he shall not be entitled to receive as compensation under this section in respect of those losses and impairments so suffered, more than $17,000 in the aggregate.
(6)
Notwithstanding the foregoing provisions of this section, no lump sum or lump sums shall be payable under this section if the assessment or the aggregate assessment of permanent loss and impairment is less than 5 percent of $17,000.
(7)
Where the Corporation has paid or has declined to pay any sum or sums to any person under this section in respect of any permanent loss or impairment of bodily function if the person thereafter suffers any loss or further loss or impairment of bodily function as a result of the original injury, the Corporation may make a further assessment of the amount payable in respect of the whole of the loss or impairment and, subject to subsection (6) of this section, may pay to the person such sum or further sum (if any) as becomes payable by reason of that further assessment but not exceeding, together with any payments previously made, $17,000 in the aggregate.
(8)
In assessing the compensation payable (whether in accordance with the said First Schedule or otherwise) in respect of the permanent loss of the sight of an eye or the permanent loss of a paired organ of the body (not including a paired limb) there shall be taken into account any payment by way of compensation which has previously been received by the person under this section and under section 119 of the Accident Compensation Act 1972 in respect of the permanent loss of the sight of the other eye or, as the case may be, the permanent loss of the other paired organ.
(9)
No payment shall be made under this section unless the injured person is living at the expiration of 28 days from the date of the accident, and payment shall not be made under this section after the death of the injured person.
(10)
The Corporation shall, before making any payment under this section, require a certificate by a registered medical practitioner of the permanent loss or impairment suffered by the injured person.
Compare: 1972, No. 43, s. 119
79 Compensation for other non-economic loss
(1)
Where a person suffers personal injury by accident in respect of which he has cover, the Corporation may pay him compensation in a lump sum of such amount (if any) as the Corporation thinks fit but not exceeding $10,000 in respect of—
(a)
The loss suffered by the person of amenities or capacity for enjoying life, including loss from disfigurement; and
(b)
Pain and mental suffering, including nervous shock and neurosis:
Provided that no such compensation shall be payable in respect of that loss, pain, or suffering unless, in the opinion of the Corporation, the loss, pain, or suffering (having regard to its nature, intensity, duration, and any other relevant circumstances) has been or is or may become of a sufficient degree to justify payment of compensation under this subsection:
Provided also that any sum payable under this section shall be paid as soon as practicable after the medical condition of the person is in the opinion of the Corporation sufficiently stabilised to enable an assessment to be made for the purposes of this section, or forthwith after the expiration of 2 years from the date of the accident, whichever is the earlier.
(2)
Where the personal injury so suffered is wholly or partly in respect of a kidney or lung or any other paired organ (not including a paired limb) to which the Governor-General has by Order in Council declared that this subsection shall apply, if the effect of the injury is specially serious by reason of a pre-existing loss or impairment of the other kidney or lung or the other such paired organ, that effect shall, for the purposes of subsection (3) of this section be an enhancement factor. Any such Order in Council may be made to come into force on the day on which it is made or on any earlier or later date.
(3)
Where compensation is payable to any person under this section in respect of the injury, if there is an enhancement factor the Corporation, having regard to the medical and other evidence available to it, may include in any such lump sum such additional amount as it considers appropriate on account of the enhancement factor.
(4)
After the lump sum payable under this section has been assessed and paid, subject to Part IX of this Act, the amount payable under this section shall not thereafter be reviewed by the Corporation:
Provided that the Corporation may review the amount of the sum so payable at any time—
(a)
In any case where a person suffers a head injury by accident in respect of which he has cover, and develops epilepsy after the lump sum payable under this section in respect of that injury has been assessed and paid:
(b)
In such other cases as the Governor-General may by Order in Council prescribe; and any such Order in Council may be made to come into force on the day on which it is made or on any earlier or later date.
(5)
In assessing compensation under this section, the Corporation shall have regard to the injured person’s knowledge and awareness of his injury and loss.
(6)
No payment shall be made under this section unless the injured person is living at the expiration of 28 days from the date of the accident, and payment shall not be made under this section after the death of the injured person.
(7)
No compensation other than that specified in this section and in section 78 of this Act shall be payable to any person under this Act in respect of non-economic loss.
Compare: 1972, No. 43, s. 120
80 Compensation for pecuniary loss not related to earnings
(1)
Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of personal injury so suffered, the Corporation, 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, 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 or diminution in value of property (whether real or personal, tangible or intangible, or movable or immovable) or any estate or interest in such 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 payment is excluded or limited under section 76 or section 77 of this Act; 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 whether or not any such compensation is actually paid; or
(h)
Any expense or loss which the Corporation considers is similar in nature to an expense or loss for which compensation is payable under any other provision of this Act, whether or not any compensation is actually paid under such other provision.
(2)
Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any other compensation payable, may—
(a)
Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such weekly compensation as the Corporation thinks fit for any quantifiable loss of service of a domestic or household nature which was previously provided on a regular basis and which is proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Corporation thinks fit, not being longer than the period for which that member could reasonably have expected to receive the service:
(b)
Pay to any person, or to the administrator of the person, such compensation as the Corporation thinks fit for any identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person while he is suffering from incapacity resulting from the injury or in taking any necessary action following and consequential upon the death of the injured person.
(3)
Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.
(4)
Where a person dies as a result of personal injury by accident in respect of which he has cover, and any superannuation, pension, or annuity terminates or is reduced upon his death, if, in the opinion of the Corporation, any dependant of the person, being a dependant who was dependent through him on that superannuation, pension, or annuity immediately before the date of death, suffers any loss of support by reason of the termination or reduction thereof, the Corporation, having regard to any other compensation payable and to the circumstances of the dependant and to any other relevant circumstances, may pay to that dependant such compensation as it thinks fit in respect of the loss which, in the opinion of the Corporation, is so suffered for such period as it thinks fit, not being a period extending beyond the shortest of the following periods:
(a)
A period equal to the expectation of life of a normal person of the same age and sex as the deceased person; or
(b)
The period for which earnings related compensation would be payable to the dependant under section 66(2) of this Act if that subsection applied to the dependant; or
(c)
Any period other than the lifetime of the deceased person for which the superannuation, pension, or annuity would have continued if the deceased person had not died.
Compare: 1972, No. 43, s. 121; 1975, No. 136, s. 22
81 Funeral expenses
Subject to any regulations made under this Act, where a person dies as a result of personal injury by accident in respect of which he has cover, the Corporation shall pay his funeral expenses to the extent that it considers that the amount thereof is reasonable by New Zealand standards.
Compare: 1972, No. 43, s. 122
82 Lump sum payments to surviving dependent spouses, children, and certain other dependants
Subject to this section, where a person dies as a result of personal injury by accident in respect of which the person has cover, the Corporation shall pay—
(a)
To the deceased person’s spouse who would have been totally or partially dependent on the deceased person immediately before that person’s death if that person had not suffered the injury, if she or he survives the deceased person by at least 48 hours,—
(i)
The sum of $4,000 if she or he would, in the opinion of the Corporation, have been so totally dependent on the deceased person:
(ii)
Such lesser sum as the Corporation thinks proper if she or he would, in the opinion of the Corporation, have been partially so dependent on the deceased person:
Provided that, if there are more such persons than one, the total amount payable under this paragraph shall not exceed $4,000 and in any case where that total amount would (apart from this proviso) exceed $4,000 the amounts payable to them under this paragraph shall abate proportionately according to the respective amounts thereof so as to reduce the total amount to $4,000:
(b)
To each child of the deceased person, and to each other person whom the Corporation, in its discretion, regards as a child of the deceased person (being a person to whom the deceased person stood in the place of a parent, and who would have been totally or partially dependent on the deceased person immediately before that person’s death if that person had not suffered the injury), if he or she survives the deceased person by at least 48 hours,—
(i)
The sum of $2,000 if the child or other person would, in the opinion of the Corporation, have been totally dependent on the deceased person immediately before that person’s death, if that person had not suffered the injury:
(ii)
Such lesser sum as the Corporation thinks proper if the child or other person would, in the opinion of the Corporation, have been partially dependent on the deceased person immediately before that deceased person’s death if that person had not suffered the injury:
Provided that the total amount payable to all such children and persons under this paragraph shall not exceed $6,000, and in any case where that total amount would (apart from this proviso) exceed $6,000, the amounts payable to them under this paragraph shall abate proportionately according to the respective amounts thereof so as to reduce the total amount to $6,000.
Compare: 1972, No. 43, s. 124
Part VII General Compensation Provisions
83 Diplomatic missions and consular posts
(1)
This section shall apply to every person who is not permanently resident in New Zealand and who is present in New Zealand for the sole purpose of performing his duties—
(a)
Either as a member of the staff of a diplomatic mission of any State (within the meaning of the Diplomatic Privileges and Immunities Act 1968) or as a member of a consular post of any State (within the meaning of the Consular Privileges and Immunities Act 1971); or
(b)
As a representative or officer or employee of the Government of any country other than New Zealand; or
(c)
As a representative or officer or employee of any international organisation or any organ thereof or of the Commonwealth Secretariat or any organ thereof; or
(d)
As a representative at any conference convened in New Zealand by an international organisation or by the Commonwealth Secretariat.
(2)
While this section applies to any person, he shall, in the event of his suffering personal injury by accident in New Zealand or dying as a result of personal injury so suffered, qualify under this Act for rehabilitation assistance within New Zealand but not elsewhere, and for compensation in respect of the injury or death with the exception of earnings related compensation.
(3)
While this section applies to any person, no levy shall be payable under Part IV of this Act in respect of his earnings.
(4)
Nothing in this Act shall affect the provisions of the Diplomatic Privileges and Immunities Act 1968 and of the Consular Privileges and Immunities Act 1971.
Compare: 1972, No. 43, s. 64; 1973, No. 113, s. 23
84 Payments to minors and persons under disability or needing protection
(1)
Where compensation is payable under this Act to any person, and the Corporation has notice that there is another person with authority to receive the compensation under the Mental Health Act 1969 or the Aged and Infirm Persons Protection Act 1912 or the Maori Affairs Act 1953, or by virtue of any order made under any of those Acts, the compensation shall be paid to that other person.
(2)
Subject to subsection (1) of this section, where compensation is payable under this Act to any person—
(a)
Who is for the time being under the age of 20 years; or
(b)
In respect of whom it appears to the Corporation, whether or not application is made by that person or any other person, that it would be in the interests of the first-mentioned person (whether by reason of his mental or physical infirmity or otherwise howsoever) or of any spouse or child or dependant of that first-mentioned person that the compensation should not be paid by the Corporation direct to that first-mentioned person—
the Corporation may, in its discretion, and at such time or times and during such period or periods and on such terms and conditions (if any) as it thinks fit, pay the whole or any part of the compensation to—
(c)
That first-mentioned person; or
(d)
Any guardian of, or any person caring for, that first-mentioned person or to any other person appointed by the Corporation to be applied for the maintenance, education, advancement, or benefit of that first-mentioned person, and his spouse, children, and other dependants or of one or more of them to the exclusion of the others or other of them, in such shares and proportions and in such manner as the appointee thinks fit; or
(e)
Any other person or to a trustee corporation (as defined in section 2 of the Trustee Act 1956) appointed by the Corporation to be held in trust and applied (as to capital as well as to the income thereof) by the appointee for the maintenance, education, advancement, or benefit of that first-mentioned person and his spouse, children, and other dependants or one or more of them to the exclusion of the others or other of them in such shares and proportions and in such manner as the appointee thinks fit.
(3)
Where any compensation payable to any person under this Act has been paid to a trustee corporation or to any other person appointed by the Corporation pursuant to subsection (2)(e) of this section—
(a)
If that first-mentioned person dies while any compensation is so held, the appointee shall pay the compensation to that first-mentioned person’s administrator or to a person to whom it may be paid under section 65 of the Administration Act 1969:
(b)
If—
(i)
That first-mentioned person, not being mentally or physically infirm, attains the age of 20 years; or
(ii)
That first-mentioned person, having been mentally or physically infirm, ceases to be so infirm after having attained the age of 20 years; or
(iii)
The appointee, on receipt of such evidence as he may require, is satisfied that the first-mentioned person, not being under the age of 20 years, is able to manage his own affairs,—
the appointee shall pay the balance of that compensation remaining in his hands to that first-mentioned person.
(4)
The Corporation shall not be liable or accountable for any act, neglect, or default of any person or trustee corporation in respect of any compensation paid to any such person or trustee corporation pursuant to this section and the receipt of any person or trustee corporation to whom any payment is made by the Corporation pursuant to this section shall be a sufficient discharge therefor.
(5)
All compensation paid to a trustee under subsection (2) of this section shall be invested—
(a)
Where the compensation is paid to the Public Trustee, in the Common Fund of the Public Trust Office or (notwithstanding section 30 of the Public Trust Office Act 1957) in such other investments as are authorised by law for the investment of trust funds, or partly in the Common Fund and partly in such other investments as aforesaid as the Public Trustee thinks fit having regard to the circumstances of the person for whose benefit the compensation is so held:
(b)
Where the compensation is paid to the Maori Trustee, in the Common Fund of the Maori Trustee’s Account or in such other investments as are authorised by law for the investment of trust funds, or partly in that Common Fund and partly in such other investments as aforesaid as the Maori Trustee thinks fit having regard to the circumstances of the person for whose benefit the compensation is so held:
(c)
Where the compensation is paid to any trustee corporation or other person as trustee, in such investments as are authorised by law for the investment of trust funds, as the trustee corporation or that other person thinks fit, having regard to the circumstances of the person or persons for whose benefit the compensation is so held.
(6)
Notwithstanding any Act or rule of law and notwithstanding in what manner the compensation is applied, any earnings related compensation paid to any person by the Corporation pursuant to this section (not being payments to which subparagraph (i) or subparagraph (ii) of section 65(2)(c) of the Income Tax Act 1976 applies) shall, for the purposes of the Income Tax Act 1976, be deemed to be and remain solely the income of the person to whom, apart from this section, that compensation was payable.
Compare: 1972, No. 43, s. 126; 1978, No. 36, s. 11(1)
85 Rules for determining dependency
(1)
For the purposes of this Act, it shall be presumed, in the absence of proof to the contrary, that the female spouse (as defined in section 65 of this Act) is totally dependent on the male spouse, and any child under the age of 16 years living in the household is totally dependent on each of its parents.
(2)
Subject to subsection (1) of this section, dependency shall be a matter of fact.
Compare: 1972, No. 43, s. 127
86 Compensation under Act in cases where claim lies overseas, etc.
(1)
Where a person suffers personal injury by accident either within or outside New Zealand, or dies as a result of personal injury so suffered, if the person has cover in respect of the injury, and if under the law of the country in which he suffers the injury, or under the law of any other country (except New Zealand), or pursuant to any international agreement or convention or protocol, or any amendments thereto, a claim for damages or compensation in respect of the injury or death lies on behalf of the person or the administrator or the widow or widower or a child or dependant of the person, the Corporation may, in its discretion, do all or any of the things specified in subsection (3) of this section.
(2)
Where a person suffers personal injury by accident, either within or outside New Zealand, while he is a passenger on international carriage within the meaning of the Carriage by Air Act 1967, or dies as a result of personal injury so suffered, if the person has cover in respect of the injury, the Corporation may, in its discretion, do all or any of the things specified in subsection (3) of this section, if a claim for damages or compensation in respect of the injury or death lies on behalf of the person or the administrator or the widow or widower or a child or dependant of the person—
(a)
Under the law of the country outside New Zealand having jurisdiction in respect of the accident; or
(b)
Pursuant to any international agreement or convention or protocol, and any amendments thereto; or
(c)
Pursuant to any agreement between carriers in respect of international carriage by air.
(3)
The things which the Corporation may do in the circumstances specified in subsections (1) and (2) of this section are—
(a)
Deduct from the compensation that is payable under this Act to the injured or deceased person or the widow or widower or any child or dependant of that person any amount recovered by the enforcement of that claim or as compensation or otherwise in respect of the injury or death; and recover from any person to whom any compensation has been paid under this Act any amount that is in excess of the amount properly payable to that person having regard to the provisions of this paragraph:
(b)
Require, as a condition precedent to the grant of all or any of the compensation payable under this Act, that all reasonable steps be taken (whether by the injured person, or by the administrator or the widow or widower or any child or dependant of the deceased person, or by assignment of rights to the Corporation) to pursue the claim for damages or compensation or any other rights in respect of the injury or death or to enable the claim or rights to be pursued:
(c)
Meet the whole or such part as it thinks fit of the costs and expenses incurred in pursuing that claim.
Compare: 1972, No. 43, s. 131
87 Duty to submit to medical examination and medical or surgical treatment
(1)
Subject to any regulations made under this Act, where a person claims compensation under this Act he shall, if and so often as required by the Corporation, submit himself at the expense (if any) of the Corporation (whether for medical expenses, transport, or loss of earnings) for examination by any registered medical practitioner nominated and to be paid by the Corporation.
(2)
If the person at any time without sufficient justification refuses or neglects to submit himself to any such examination or in any way obstructs or delays the same, his rights under this Act in respect of the injury to which the examination relates shall be suspended, except so far as the Corporation otherwise decides, until the examination takes place.
(3)
Where a person suffers personal injury by accident in respect of which he has cover or dies as a result of personal injury so suffered, then, except so far as the Corporation otherwise decides, no rehabilitation assistance shall be granted and no compensation shall be payable to any person in respect of or by reason of any loss, expense, incapacity, or impairment that results from the injury, or in respect of or by reason of the death, if and so far as the loss, expense, incapacity, or impairment is caused, continued, or aggravated, or (in the case of death) the death is caused, by an unreasonable failure by the injured person to act in accordance with medical advice or by his unreasonable refusal to submit to medical treatment, or to any surgical treatment the risk of which is, in the opinion of the Corporation, inconsiderable in view of the seriousness of the injury, or by his unreasonable refusal to comply with any requirement of the Corporation in relation to his rehabilitation:
Provided that the Corporation may pay or apply the whole or any part of the compensation that would, apart from this subsection, be payable in respect of or by reason of the incapacity of the person for the maintenance and education of any dependant or dependants of the person.
Compare: 1972, No. 43, s. 132; 1973, No. 113, s. 50(a); 1975, No. 136, s. 23
88 Advances in anticipation of claim to compensation
(1)
Without restricting any other provision of this Act, the Corporation may from time to time make payments on account of compensation under this Act to any person before the person has established his claim or the amount of his claim for compensation if it has reason to believe that the person will be able to establish his claim thereto.
(2)
Where any payment is so made to a person who does not establish a claim to compensation under this Act but who establishes a claim to a benefit under Part I of the Social Security Act 1964, the Social Security Commission (with the concurrence of the Corporation) may treat the amount so paid or so much thereof as it thinks fit as having been paid in respect of that benefit, and may refund to the Corporation, out of money appropriated by Parliament for the purpose, so much of the payment as is treated under this subsection as having been paid in respect of that benefit. Any amount that is treated under this subsection as having been paid in respect of any such benefit shall for all purposes be deemed to have been so paid.
(3)
Where any payment is made under Part I of the Social Security Act 1964 to a person who establishes a claim to compensation under this Act, if the amount paid in respect of the benefit is in excess of the amount properly payable having regard to the compensation, the Corporation (with the concurrence of the Social Security Commission) may treat the amount so paid or so much thereof as it thinks fit as having been paid in respect of that compensation, and may refund to the Social Security Commission, without further appropriation than this section, so much of the payment as is treated under this subsection as having been paid in respect of that compensation. Any amount that is treated under this subsection as having been paid in respect of any such compensation shall for all purposes be deemed to have been so paid.
(4)
Where any amount is paid by the Corporation under this section to any person so far as the person does not establish a claim thereto as compensation and the amount is not treated under subsection (2) of this section as having been paid in respect of a benefit under Part I of the Social Security Act 1964, it shall constitute a debt due to the Corporation which may be recovered by the Corporation in accordance with section 114 of this Act.
Compare: 1972, No. 43, s. 134
89 Compensation not assignable
(1)
While any money payable by the Corporation by way of compensation under this Act is held—
(a)
By the Corporation; or
(b)
By any person to whom the money has been paid by the Corporation pursuant to subsection (1) or paragraph (d) or paragraph (e) of subsection (2) of section 84 of this Act and by whom the money is to be applied as therein mentioned—
it shall not be capable of being assigned, charged, taken in execution, or attached, nor shall any claim be set off against it, nor shall it be assets in the bankruptcy of the person to whom, apart from section 84 of this Act, that compensation was payable.
(2)
No amount paid by way of compensation under section 78 or section 79 of this Act shall be—
(a)
Capable of being charged, taken in execution, or attached, nor shall any claim be set off against it, within the 2 years following the date on which it is paid:
(b)
Assets in the bankruptcy of the person entitled thereto, if the payment is made during the bankruptcy or within 2 years before the date on which the person was adjudicated bankrupt.
(3)
Sections 54 and 56 of the Insolvency Act 1967 shall not apply to any gift or payment of or out of any amount received by any person as compensation under section 78 or section 79 of this Act if the gift or payment was made within 2 years after the date of the receipt.
(4)
Nothing in this section shall restrict any right conferred on the Corporation by this Act to recover any amount paid to any person as compensation, or to set off against compensation payable to any person amounts owing by that person in respect of levies and penalties thereon payable by him and compensation overpaid.
(5)
Nothing in this section shall affect sections 4 and 5 of the Maori Housing Act 1935, section 71 of the Social Security Act 1964, section 400 of the Income Tax Act 1976, and sections 118 and 121 of the Family Proceedings Act 1980.
Compare: 1972, No. 43, s. 135; 1973, No. 113, s. 51; 1978, No. 36, s. 11(2); 1980, No. 94, s. 189(1)
90 Wilfully self-inflicted personal injuries and suicide
(1)
No compensation shall be payable under this Act in respect of—
(a)
Any personal injury that a person wilfully inflicts on himself or, with intent to injure himself, causes to be inflicted upon himself, or death resulting therefrom; or
(b)
The death of any person where the death was due to suicide, not being suicide that was the result of a state of mind that itself was the result of personal injury by accident in respect of which the person had cover:
Provided that, in any case where a dependant of the injured or deceased person is in special need of assistance, and compensation would have been payable under this Act if the person had otherwise suffered personal injury or died as a result thereof, the Corporation may, in its discretion and in such manner as it thinks fit, pay or apply the whole or such part as it thinks fit of the compensation that would have been so payable for the maintenance and education of the dependant or dependants of the injured or deceased person in special need of assistance or of such of them as the Corporation thinks fit.
(2)
It shall be presumed, in the absence of proof to the contrary, that the death of any person was not due to suicide.
(3)
Except so far as the Corporation otherwise decides, no rehabilitation assistance under this Act in respect of or by reason of the incapacity of a person shall be given, if and so far as his incapacity is caused, continued, or aggravated, by any physical injury that he wilfully inflicts on himself, or with intent to injure himself, causes to be inflicted upon himself.
Compare: 1972, No. 43, s. 137; 1975, No. 136, s. 25
91 Disqualification through conviction of murder or manslaughter
(1)
In this section—
“Dependant” includes a person who is entitled to compensation under section 80(2) of this Act:
“Manslaughter” means manslaughter within the meaning of the Crimes Act 1961; and includes any killing of a human being outside New Zealand that would, if done in New Zealand, have amounted to manslaughter:
“Murder” means murder within the meaning of the Crimes Act 1961; and includes any killing of a human being outside New Zealand that would, if done in New Zealand have amounted to murder.
(2)
No compensation shall be payable under any of the provisions of sections 65, 70, 80(2), 80(4), and 82 of this Act to the spouse or a child or other dependant of any person by reason of the death of that person if that spouse, child, or dependant has been convicted by a Court of law in New Zealand or any other country of the murder or manslaughter of the deceased person:
Provided that the Corporation may pay compensation under any of those provisions to any such spouse, child, or dependant who has been convicted of the manslaughter of the deceased person if it is proved to the satisfaction of the Corporation that the convicted person had no intention of killing or causing grievous bodily harm to the deceased person or any other person at the time when he killed the deceased person.
(3)
Where the surviving spouse, or a child or other dependant of the deceased person is disqualified from being paid compensation under sections 65 and 82 of this Act, those sections shall be read as if the disqualified person had died before the deceased person.
(4)
Where the Corporation has reason to suspect that the death of any person was due to murder or manslaughter, and has reason to suspect the spouse or a child or other dependant of the deceased person of the murder or manslaughter, the Corporation may refuse to make any payment of compensation to that spouse or child or dependant under any of sections 65, 70, 80(2), 80(4), and 82 of this Act until the expiration of 6 months from the date of the death of the deceased person.
(5)
Where any compensation is paid by the Corporation under any of sections 65, 70, 80(2), 80(4), and 82 of this Act to the spouse or a child or other dependant of any person by reason of the death of that person, and that spouse, child, or dependant is or has been convicted by a Court of law in New Zealand or any other country of the murder or manslaughter of the deceased person, it shall constitute a debt due to the Corporation which may be recovered by the Corporation under section 114 of this Act from that spouse, child, or dependant.
Compare: 1972, No. 43, s. 138
92 Personal injury suffered in course of criminal conduct
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.
Part VIII Procedures
93 Duty to give notice of accidents
(1)
Where a person suffers personal injury by accident in respect of which he has cover, and if he makes or intends to make a claim for any rehabilitation assistance or compensation under this Act in respect of the injury, the person shall, as soon as practicable, give notice of the accident and the injury—
(a)
If he is an employee and the accident arises out of and in the course of his employment, to the employer in whose employment he was working at the time of the accident; or
(b)
In every other case, to the Corporation.
(2)
Every such notice shall be given in writing, and shall state the nature and cause of the injury and the date, time, and place at which the accident happened, and may include or accompany a claim for rehabilitation assistance or compensation under this Act.
Compare: 1972, No. 43, ss. 139, 142
94 Employers to keep records of accidents
(1)
Where an employer becomes aware, by reason of a notice given to him under section 93 of this Act or otherwise, that—
(a)
An employee who is in his employment has suffered personal injury by accident arising out of and in the course of that employment; and
(b)
As a result of the injury the employee’s capacity for work in that employment has been or is likely to be affected—
or where an employer becomes aware that an employee in his employment has died as the result of any such injury, the employer shall, as soon as practicable, enter particulars of the accident and injury in the record of accidents to be kept by him in accordance with this section.
(2)
Every such record of accidents shall be kept in a form prescribed by the Corporation by notice in the Gazette, or in a form approved by the Corporation. The Corporation may, in accordance with this subsection, prescribe a form of record of accidents to suit all cases or a number of forms to suit different classes or categories of industries, occupations, or cases.
(3)
Without restricting subsection (2) of this section, the Corporation may—
(a)
With the consent of the Secretary of Labour, prescribe the accident register which has to be kept by the occupier of a factory under section 53 of the Factories and Commercial Premises Act 1981 to be the form of record of accidents to be used for the purposes of this section by employers who are occupiers of factories registered under that Act:
(b)
With the consent of the appropriate authority, prescribe any record or register of accidents kept under any other Act to be the form of record of accidents to be used for the purposes of this section.
Compare: 1972, No. 43, s. 140
95 Employers to make periodical reports of accidents to Corporation
The Corporation shall, from time to time, by notice in the Gazette, specify—
(a)
The form or manner in which reports shall be made by employers to the Corporation regarding accidents to which section 94 of this Act applies:
(b)
Periods in respect of which reports shall be made to the Corporation regarding those accidents by all employers or by any class or classes of employers:
(c)
The final date for the making of reports in respect of each such period.
Compare: 1972, No. 43, s. 141
96 Claims by injured persons and dependants
Where a person suffers personal injury by accident in respect of which he has cover or dies as a result of personal injury so suffered, if a claim for rehabilitation assistance or compensation under this Act results from the injury or death, the claim shall, unless any regulations made under this Act otherwise prescribe or the Corporation otherwise determines, be made in writing and given as follows—
(a)
If the claim is by an employee and the accident arises out of and in the course of his employment, it shall be forwarded initially to the employer in whose employment the employee was working at the time of the accident, and, as soon as practicable, the employer shall forward the claim to the Corporation; or
(b)
If the claim is by an injured person other than an employee to whom paragraph (a) of this section applies, or is by the spouse or child or dependant or the administrator of a deceased person, it shall be forwarded to the Corporation.
Compare: 1972, No. 43, ss. 143, 144, 145
97 Reports, claims, etc., on behalf of incapacitated persons
Where any person is incapable of reporting any accident, or of making any claim, or doing any thing required by or under this Act in connection therewith, the report or claim may be made or the thing may be done on his behalf by his legal representative or any other person acting for him in the matter.
Compare: 1972, No. 43, s. 148
98 Limitation of time for making claims
(1)
Except as provided in this section and in sections 28 and 29 of this Act, no rehabilitation assistance or compensation under this Act shall be given or paid unless a claim in writing in respect of the relevant injury is received by the Corporation within 12 months after the date of the accident causing the injury, or (in the case of death) within 12 months after the date of the death.
(2)
A failure to forward any such claim within the time specified in subsection (1) of this section shall be no bar to the claim if the Corporation is of the opinion that it has not been prejudiced in the determination of the case by the failure, whether in the making of inquiries or otherwise, or that the failure was occasioned by mistake of fact, or by mistake of any matter of law other than the provisions of this section, or by any other reasonable cause.
Compare: 1972, No. 43, s. 149
99 Particulars of claims
(1)
Subject to any regulations made under this Act, where a claim for rehabilitation assistance or compensation is made under this Act, the claim shall be made in a form approved by the Corporation; and the claimant and any other person from whom the Corporation may require evidence or information under subsection (3) of this section, shall supply or cause to be supplied to the Corporation such further evidence or information relevant to the claim and the entitlement or continued entitlement to rehabilitation assistance or compensation as the Corporation may require.
(2)
The claimant shall, if so required by the Corporation, support his claim by a statutory declaration made by him verifying the evidence or information which he is required to supply.
(3)
The Corporation may allow any such claim upon the statement or statutory declaration of the claimant alone, or may, if it thinks fit, call for such other evidence or information as it may require from the claimant or any other person before allowing any such claim.
(4)
The Corporation may receive any relevant evidence or information for the purposes of this section, whether or not the evidence would be admissible in a Court of law.
(5)
If any claimant or other person from whom the Corporation may require evidence under subsection (3) of this section fails or neglects to supply any such evidence or information to the Corporation, it may withhold or discontinue the provision of rehabilitation assistance or the payment of compensation to that claimant.
Compare: 1972, No. 43, s. 146; 1973, No. 113, s. 52
100 Notice of decisions
(1)
Subject to this Act, the Corporation or any agent of the Corporation authorised in that behalf shall, as soon as practicable, give notice in writing of any decision in respect of which an application for review may be made under section 101 of this Act:
Provided that the foregoing provisions of this subsection shall not apply to any decision which results in payment in full, by or on behalf of the Corporation, of any amounts claimed for compensation under any of sections 64, 72 to 77, and 81 of this Act.
(2)
Subject to this Act, notice required to be given in accordance with subsection (1) of this section shall—
(a)
Where a claim for rehabilitation assistance or compensation is made, be given to the person making the claim; or
(b)
Where the decision is one affecting the liability of any person to pay any levy under this Act or the amount of any such levy, be given to that person.
(3)
Subject to sections 60(5), 111(5), and 112(13) of this Act, any decision made by the Corporation may be revised by the Corporation if it appears to it that the decision has been made in error, whether by reason of mistake or by reason of false or misleading information having been supplied or by reason of fresh evidence or for any other reason, and the Corporation may thereupon alter or amend any such decision or revoke the decision and substitute another decision therefor:
Provided that any such alteration, amendment, or revocation and substituted decision shall be deemed to be a decision of the Corporation for the purposes of this section and sections 101 to 112 of this Act.
(4)
Subject to any regulations made under this Act, the Corporation shall, as soon as practicable, give notice in writing of any decision under subsection (4) or subsection (5) of section 27 of this Act as follows:
(a)
In the case of a decision under the said subsection (4), the notice shall be given to each of the parties to the proceedings in which the question for decision arose, and a copy of the notice shall be sent to the Registrar of the Court by which the question was referred to the Corporation:
(b)
In the case of a decision under the said subsection (5), the notice shall be given to the person on whose application the decision has been made, and to all other parties to the proceedings or contemplated proceedings.
Compare: 1972, No. 43, s. 151; 1973, No. 113, s. 53
Part IX Appeals
Applications for Review
101 Application for review
(1)
Any person who is dissatisfied with a decision of the Corporation, or of any member, officer, employee, or agent thereof, or of any committee appointed by the Corporation, not being a decision under subsection (4) or subsection (5) of section 27 of this Act, may apply to the Corporation for a review of that decision where it affects—
(a)
Whether or not a person has suffered personal injury by accident or died as a result of personal injury so suffered; or
(b)
The liability of the applicant to pay any levy under this Act or the amount of any such levy for which he is liable; or
(c)
The granting or payment of rehabilitation assistance under this Act to any person or of compensation under this Act to any person or deceased person:
Provided that there shall be no right to apply for a review pursuant to this section in respect of the determination under and for the purposes of the Income Tax Act 1976 of the assessable income of any person:
Provided also that the obligation to pay and the right to receive and recover any levy shall not be suspended by any application pursuant to this section.
(2)
An application pursuant to this section shall be made in writing within one month after the date on which notice in writing has been given of the decision in respect of which review is sought or within such extended time as the Corporation may allow on application made either before or after the expiration of that month, and shall state shortly the grounds on which the application is made.
(3)
Any application pursuant to this section shall be made by delivering or posting it to the Corporation or any authorised agent.
(4)
Where a remedy by way of review or appeal is provided under this Part of this Act, no other remedy shall be available.
Compare: 1972, No. 43, s. 153; 1973, No. 113, s. 54
102 Hearings of applications for review
(1)
The Corporation may from time to time appoint under section 13 of this Act suitable persons to be Review Officers for the purpose of hearing applications for review that are made to the Corporation under section 101 of this Act.
(2)
On receipt of any such application, the Corporation shall endeavour to resolve the matter at issue promptly by administrative means, and, if it is unable to resolve the matter, shall refer it to a Review Officer for a hearing.
(3)
Every such hearing shall be held as expeditiously as possible, and subsections (2) and (3) of section 8 of this Act shall apply to every such hearing.
(4)
Every such hearing shall be held at a time and place that are—
(a)
Agreed to by the applicant and the Review Officer; or
(b)
Specified in a notice given by or on behalf of the Review Officer not less than 7 clear days before the day appointed for the hearing.
(5)
The applicant, either personally or by a representative, shall be entitled to be present and be heard at the hearing and to present any relevant evidence in support of the application.
(6)
The Review Officer may receive such other relevant evidence and make such other enquiries as he thinks fit, and may for that purpose appoint a medical committee. All evidence and information so received or ascertained (otherwise than at the hearing) shall be disclosed to every party to the review.
(7)
The Review Officer may receive any relevant evidence under subsection (5) or subsection (6) of this section, whether or not the evidence would be admissible in a Court of law.
(8)
In reaching his decision the Review Officer shall act independently.
(9)
On the completion by a Review Officer of any hearing—
(a)
He may, if he is so authorised, give a decision on the application; or
(b)
He shall, if he is not so authorised or for any reason declines to give a decision, forward to the Corporation a written report of his findings together with his recommendation, and shall at the same time send a copy thereof to the applicant.
(10)
On the receipt by the Corporation of the report of a Review Officer in respect of an application, the Corporation shall consider the application and give a decision thereon.
(11)
Notice of the decision shall be sent to the applicant and the Corporation by the Review Officer and the Corporation shall give effect to the decision.
(12)
Every notice under subsection (11) of this section shall contain information as to the applicant’s right of appeal under this Act.
(13)
Where a decision against which the applicant may appeal is given under the foregoing provisions of this section, the reasons therefor shall be stated and shall, if so requested by the applicant, be delivered in writing.
(14)
Subject to this section and to any rules of procedure laid down by the Corporation, the procedure at a hearing shall be as the Review Officer determines.
(15)
Subject to any regulations made under this Act, where on an application for review,—
(a)
The Corporation resolves the matter at issue in favour of the applicant pursuant to subsection (2) of this section; or
(b)
A hearing of the application is held and a decision is given in favour of the applicant or the Review Officer considers that the applicant has acted reasonably in applying for a review,—
the Corporation or the Review Officer, as the case may be, may allow the applicant reasonable costs.
Compare: 1972, No. 43, s. 154
Appeals to Appeal Authority
103 Constitution of Appeal Authority
(1)
There shall continue to be an Appeal Authority called the Accident Compensation Appeal Authority, which shall be the same Authority as that existing under the same name immediately prior to the commencement of this Act.
(2)
The functions of the Appeal Authority shall be to sit as a judicial authority for the determination of any appeal that lies to that Authority in accordance with section 107 of this Act.
(3)
The Authority shall consist of one or more members, each of whom shall be a barrister and solicitor of the High Court of not less than 7 years’ practice, whether or not he holds or has held any judicial office.
(4)
Each member of the Authority shall be appointed by the Governor-General on the recommendation of the Minister of Justice, and shall hold office for a term of 3 years, but may from time to time be reappointed by the Governor-General.
(5)
Any member of the Authority sitting alone, or any 2 or more members sitting together, may exercise the powers of the Authority.
(6)
Proceedings may be continued before a member or members of the Authority other than the member or members before whom they were commenced.
(7)
Any member of the Authority may be removed from office by the Governor-General for disability, bankruptcy, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General, or may at any time resign his office by writing addressed to the Minister of Justice.
(8)
If a member of the Authority dies or is removed from office or resigns, the vacancy so created shall be filled by the appointment, in the manner prescribed by subsection (4) of this section, of a person qualified for appointment to the office.
(9)
The Authority shall have a seal which shall be judicially noticed by all Courts for all parties.
Compare: 1972, No. 43, ss. 155, 159; 1979, No. 70, s. 3(1)
104 Remuneration and travelling expenses
The Corporation shall pay to any member of the Authority, and to any person who is appointed as an assessor under section 106 of this Act, remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951; and that Act shall apply accordingly as if every such person were a member of a statutory Board within the meaning of that Act.
Compare: 1972, No. 43, s. 157; 1973, No. 118, s. 55; 1979, No. 70, s. 3(2)
105 Services for Authority, etc.
(1)
The Secretary for Justice shall designate an officer of the Department of Justice to be Registrar of the Authority, and shall provide such secretarial, recording, and clerical services as may be necessary to enable the Authority to discharge its functions.
(2)
The Corporation shall pay to the Secretary for Justice, for the credit of the Consolidated Account, the reasonable costs of the Department of Justice in providing the services referred to in subsection (1) of this section.
Compare: 1972, No. 43, s. 158
106 Assessors
(1)
If the Authority is of the opinion that any appeal involves consideration of matters of a professional, technical, or specialised nature, and that it would be desirable to appoint a person with expert knowledge of those matters to be an assessor, the Authority shall consult the parties, and if the Authority and the parties agree on a suitable person to be so appointed the Authority shall appoint that person to be an assessor for the purposes of the appeal. If the Authority and the parties are unable to agree on a suitable person to be so appointed the Authority may appoint such suitable person as it thinks fit to be such an assessor. Any assessor appointed under this section shall sit with the Authority and in all respects act as an extra member thereof for the hearing and determination of the appeal, except that the assessor shall have no vote in the determination of the appeal.
(2)
No appointment of an assessor under this section shall, in any proceedings, be called in question on the grounds that the occasion for the appointment had not arisen or had ceased.
Compare: 1972, No. 43, s. 160
107 Right of appeal
An appeal shall lie to the Appeal Authority against—
(a)
Any decision of a Review Officer on an application for review under section 101 of this Act:
(b)
Any decision of the Corporation under subsection (4) or subsection (5) of section 27 of this Act.
Compare: 1972, No. 43, s. 162
108 Procedure on appeal
(1)
Every appeal shall be by notice of appeal in the prescribed form or to like effect, and shall be lodged with the Registrar of the Appeal Authority within one month after the date on which the decision of the Corporation or the Review Officer was notified to the applicant or within such further time as the Authority may allow on application made either before or after the expiration of that month.
(2)
The notice of appeal shall state with particularity the grounds of appeal and the relief sought.
(3)
Either before or immediately after the lodging of the notice of appeal, a copy of it shall be left with or sent to the Corporation.
(4)
As soon as possible after the receipt of the copy of the notice of appeal by the Corporation, it shall send to the Registrar of the Appeal Authority—
(a)
Any application, documents, written submissions, statements, reports, and other papers lodged with, received by, or prepared for, the Corporation or the Review Officer and relating to the decision appealed against; and
(b)
A copy of any notes made by or by direction of the Corporation of the evidence given at the hearing (if any) before the Corporation or the Review Officer; and
(c)
Any exhibits in the custody of the Corporation; and
(d)
A copy of the decision appealed against.
(5)
The Corporation may also, if it thinks fit, and shall if the Authority so directs, lodge with the Registrar a report setting out the considerations to which regard was had in making the decision, including any material indicating the effect that the decision might have on the general administration of this Act, and any other matters relevant to the decision or to the general administration of this Act to which it wishes to draw the attention of the Authority.
(6)
Where any such report is so lodged, the Authority may direct that a further report be lodged by the Corporation.
(7)
A copy of every report lodged pursuant to subsection (5) or subsection (6) of this section shall be given or sent forthwith to every party to the appeal, and any such party shall be entitled to be heard and to tender evidence on any matter referred to in the report.
(8)
As soon as conveniently may be after the receipt of any appeal, the Appeal Authority shall fix a time and place for the hearing of the appeal, and shall give not less than 10 clear days’ notice thereof to the appellant and to the Corporation.
(9)
At the hearing of any appeal the Corporation may be represented by counsel or by an officer of the Corporation, and any other party may appear and act personally or by counsel for any duly authorised representatives.
(10)
Proceedings before the Authority shall not be held bad for want of form.
(11)
Except as provided by this Act or any regulations made thereunder, the procedure of the Authority shall be such as the Authority may determine.
(12)
Every sitting of the Authority shall be held in public and in such place as it considers convenient:
Provided that the Authority may, if it considers it in the interest of the parties to the appeal and of all other parties concerned, order that the sitting, or any part thereof, shall be held in private.
(13)
Where notice of any decision in respect of which an appeal lies to the Authority has been given by post addressed to the applicant at his last known or usual address, then, for the purposes of subsection (1) of this section, the applicant shall be deemed to have been notified of the decision at the time when the letter would have been delivered in the ordinary course of post.
Compare: 1972, No. 43, ss. 163, 165
109 Hearing and determination of appeal
(1)
Every appeal against a decision of the Corporation or a Review Officer shall be by way of rehearing; but where any question of fact is involved in any appeal, the evidence taken before or received by the Corporation or Review Officer bearing on the subject shall, subject to any special order, be brought before the Authority as follows:
(a)
As to any evidence given orally, by the production of a copy of the notes of the Corporation or Review Officer or of a written statement read by a witness while under oath, or of such other material as the Authority thinks expedient:
(b)
As to any evidence taken by affidavit and as to any exhibits, by the production of such of the affidavits and exhibits as may have been forwarded to the Registrar of the Authority pursuant to section 108(4) of this Act, and by the production by the parties to the appeal of such exhibits as are in their custody.
(2)
Notwithstanding anything in subsection (1) of this section, on any appeal against a decision of the Corporation or a Review Officer, the Authority may rehear the whole or any part of the evidence, and shall rehear the evidence of any witness if the Authority has reason to believe that any note of the evidence of that witness made by the Corporation or Review Officer is or may be incomplete in any material particular.
(3)
The Authority shall have full discretionary power to hear and receive evidence or further evidence on questions of fact, either by oral evidence or by affidavit.
(4)
The Authority shall also have regard to the contents of any report lodged by the Corporation under section 108 of this Act and to any evidence tendered thereon whether or not such matters would be otherwise admissible in evidence.
(5)
In the exercise of its powers under this section the Authority may receive as evidence any statement, document, information, or matter which, in the opinion of the Authority, may assist it to deal with the matters before it, whether or not the same would be admissible in a Court of law.
(6)
The Authority shall, within the scope of its jurisdiction, be deemed to be a Commission of Inquiry under the Commissions of Inquiry Act 1908, and, subject to the provisions of this Act, all the provisions of that Act, except sections 2, 10, 11, and 12, shall apply accordingly.
(7)
In the determination of any appeal the Authority may confirm, modify, or reverse the decision appealed against.
(8)
Notwithstanding subsection (7) of this section, the Authority may refer to the Corporation for further consideration the whole or any part of the matter to which an appeal relates, and where any matter is so referred the Authority shall advise the Corporation of its reasons for so doing and shall give such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is so referred.
(9)
On the determination of any appeal, the Registrar shall send to the Corporation and to the appellant a memorandum of the Authority’s decision, and the Corporation shall forthwith take all necessary steps to carry that decision into effect.
Compare: 1972, No. 43, ss. 164, 167
110 Costs
(1)
Where an appeal is allowed in whole or in part, or the whole or any part of the matter is referred back to the Corporation, the Authority may allow the appellant the costs of bringing the appeal or any part thereof.
(2)
Where any appeal is not allowed, no award of costs shall be made against the appellant unless, in the opinion of the Authority, the appeal was frivolous or vexatious or one that ought not to have been brought.
(3)
Notwithstanding the foregoing provisions of this section, where an application for an adjournment of a fixture for an appeal is made by either the Corporation or the appellant, and the Authority, in the interests of justice, considers that the adjournment should be allowed but is of the opinion that the adjournment will cause inconvenience or expense to any person, including the Authority, the Authority may order the party requesting the adjournment to pay such sum for costs as it considers reasonable.
(4)
The amount of costs awarded shall be stated in the order.
(5)
Where under this section an award of costs is made and any sum remains unpaid, the person in whose favour the award or order was made may obtain from the Registrar a certificate under seal of the sum awarded. When any such certificate is filed in a District Court it may be enforced as to the amount specified therein that is still owing as if it were a judgment of that Court.
Compare: 1972, No. 43, s. 166
Appeals to High Court
111 Appeal to High Court
(1)
Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may, with the leave of the Authority, appeal to the High Court against that order or decision:
Provided that, if the Appeal Authority refuses to grant leave to appeal, the High Court may grant special leave to appeal.
(2)
The Appeal Authority or the High Court, as the case may be, may grant leave accordingly on a question of law or if in its opinion the question involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision.
(3)
Every appeal under this section shall be heard and determined by the Administrative Division of the High Court.
(4)
Every such appeal shall be made by giving notice of appeal within 28 days after the date on which the appellant was notified of the order or decision appealed against or within such further time as the Appeal Authority or the Court may allow on application made either before or after the expiration of those 28 days.
(5)
In its determination of any appeal, the Court may confirm, modify, or reverse the order or decision appealed against, and, subject to section 112 of this Act, the decision of the Court shall be final and conclusive.
(6)
Subject to the provisions of this section, the procedure in respect of any such appeal shall be in accordance with the rules of the Court.
Compare: 1972, No. 43, s. 168
112 Appeal against decision of Administrative Division on question of law
(1)
If any party to any proceedings before the Administrative Division of the High Court under this Part of this Act is dissatisfied with any determination or decision of the Court in the proceedings as being erroneous in point of law, he may, with the leave of that Division, appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only:
Provided that, if the Administrative Division refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2)
Within 28 days after the date of the determination or decision of the Administrative Division, a party desiring to appeal to the Court of Appeal under this section shall file a notice of his application for leave to appeal with the Registrar of the High Court at Wellington, and shall forthwith deliver or post a copy of the notice to every other party to the proceedings.
(3)
The Administrative Division may grant leave accordingly if in its opinion the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(4)
Where the Administrative Division refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after that refusal, or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in its opinion the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
(5)
Within 14 days after leave to appeal is granted under this section, or within such further time as the Judge before whom the proceedings were heard may in his discretion allow, the appellant shall state in writing and file with the Registrar of the High Court at Wellington a case setting out the facts and the grounds of the determination or decision and specifying the question of law on which the appeal is made. The appellant shall forthwith deliver or post a copy of the case to every other party to the proceedings.
(6)
As soon as practicable after the filing of the case, the Registrar shall cause it to be submitted to the Judge before whom the proceedings were heard.
(7)
The Judge shall, as soon as practicable, and after hearing the parties if he considers it necessary to do so, settle the case, sign it, and cause it to be sent to the Registrar. The settling and signing of the case shall be deemed to be the statement of the case by the Court.
(8)
Where since the date of the determination or decision the Judge before whom the proceedings were heard has ceased to hold office as such or died or left New Zealand, or is incapable by reason of sickness or otherwise from acting as such, the case may be submitted to any Judge of the High Court and may be settled and signed by him.
(9)
The Registrar shall send the signed case to the Registrar of the Court of Appeal, and shall make a copy available to each party.
(10)
If within 14 days after the granting of leave to appeal, or within such further time as may be allowed, the appellant does not file a case pursuant to subsection (5) of this section, the Judge may certify that the appeal has not been prosecuted.
(11)
The High Court or a Judge thereof may, in its or his discretion, on the application of the intending appellant, made either before or after the expiration of the prescribed or allowed time, extend any time prescribed or allowed under this section for the filing of an application for leave to appeal or the stating of any case.
(12)
In its determination of any appeal under this section, the Court of Appeal may do any one or more of the following things:
(a)
Reverse, confirm, or amend the determination or decision in respect of which the case has been stated; or
(b)
Remit the matter to the Administrative Division with the opinion of the Court of Appeal thereon; or
(c)
Make such other order in relation to the matter as it thinks fit.
(13)
The decision of the Court of Appeal on any appeal under this section or on any application for leave to appeal shall be final.
(14)
Subject to the provisions of this section, the case shall be dealt with in accordance with the rules of the Court.
Compare: 1972, No. 43, s. 169
Part X General Provisions
113 Effect on cover of acceptance of levy
The acceptance by the Corporation or any agent of the Corporation of any levy under this Act shall not confer cover on any person in respect of personal injury by accident otherwise than in accordance with this Act.
Compare: 1972, No. 43, s. 170
114 Power to recover or write off compensation overpaid and unpaid levies
(1)
Where the Corporation or any agent of the Corporation pays any amount to any person in response to a claim for rehabilitation assistance or compensation, and it is subsequently shown that the whole or any part of that amount was paid in error or was not properly payable having regard to all the circumstances, so much of that amount as was paid in error or was not properly payable (except so far as it is varied or cancelled on a review or appeal) shall constitute a debt due to the Corporation which may be recovered by the Corporation either by way of deduction from any compensation thereafter payable to that person or by way of proceedings instituted in that behalf, or partly by one such way and partly by the other such way as the Corporation determines.
(2)
If any levy remains unpaid after the last date for payment thereof, the amount for the time being unpaid in respect thereof and in respect of the amount of the penalty (if any) added thereto under section 42(3) of this Act and not remitted (except so far as it is varied or cancelled on a review or appeal) shall constitute a debt due to the Corporation and may be recovered by the Corporation either by way of deduction from any compensation thereafter payable to that person or by way of proceedings instituted in that behalf, or partly by one such way and partly by the other such way as the Corporation determines.
(3)
Notwithstanding any other shorter period of limitation in any statute, an action or remedy for the recovery of any levy may be taken until the expiration of 10 years from the date on which the levy became payable.
(4)
Notwithstanding anything in the District Courts Act 1947, any Court constituted under that Act shall have jurisidiction to hear and determine proceedings pursuant to this section, whatever the amount involved.
(5)
In any action in a District Court pursuant to this section, the Corporation may be represented by counsel or by an officer of the Corporation.
(6)
Sections 401 and 402 of the Income Tax Act 1976 shall, with the necessary modifications, apply to an action for the recovery of any amount which may be recovered by the Corporation pursuant to this section as if every reference therein to tax were a reference to any amount which may be recovered pursuant to this section and every reference therein to the Commissioner were a reference to the Corporation.
(7)
The Corporation may write off any amount declared by subsection (1) or subsection (2) of this section to be recoverable (whether or not any steps to recover the same have been taken) if, in the opinion of the Corporation, the amount is irrecoverable or cannot without the risk of disproportionate expense be recovered.
Compare: 1972, No. 43, ss. 171, 172
115 Payments to administrator of deceased person
Subject to sections 78 and 79 of this Act, where any amount has become payable to any person in his lifetime in respect of rehabilitation assistance or compensation under this Act but has not been paid to him before his death, it shall be paid to his administrator or to a person to whom it may be paid under section 65 of the Administration Act 1969.
Compare: 1972, No. 43, s. 174
116 Service of notices, etc.
(1)
Where by this Act any notice or instrument has to be delivered, given, or sent to the Corporation or any agent of the Corporation or any person, it may be delivered, given, or sent,—
(a)
In the case of the Corporation or any agent,—
(i)
By delivering it to the Corporation or to the appropriate agent of the Corporation; or
(ii)
By sending it by post addressed to the Corporation, or to the appropriate agent of the Corporation, at its or his usual address:
(b)
In the case of any other person,—
(i)
By delivering it to the person to whom it has to be given or sent; or
(ii)
By leaving it at the usual or last known address in New Zealand of that person; or
(iii)
By sending it by post in a letter addressed to that person at his usual or last known address in New Zealand.
(2)
Where a notice or instrument is sent by post in the manner prescribed in subsection (1) of this section, it shall be deemed to have been given at the time at which the letter would have been delivered in the ordinary course of post.
Compare: 1972, No. 43, s. 177
117 Annual report of Corporation
(1)
The Corporation shall, within 3 months after the end of each financial year, furnish to the Minister a report for that financial year with respect to the operations of the Corporation and the discharge of its functions, which report shall, in addition to all other matters which are required to be included in the report,—
(a)
Include a copy of the accounts of the Corporation for that financial year as audited by the Audit Office:
(b)
Refer specially to the operations of the Corporation during that financial year in relation to the prevention of accidents and the rehabilitation of injured persons:
(c)
Set out the recommendations made by the Corporation to the Minister during that financial year under section 7 of this Act:
(d)
Where the Corporation has, during the financial year, received a copy of a report made by the Government Actuary or another independent actuary under section 7(6) of this Act, refer specially to that report and the views of the Corporation thereon.
(2)
A copy of every such report of the Corporation shall be laid before Parliament as soon as practicable after the date on which it is furnished to the Minister.
Compare: 1972, No. 43, s. 178
118 Ex gratia payments
(1)
Where a person suffers personal injury by accident, or dies as a result of personal injury so suffered, and—
(a)
The accident happens in New Zealand and the person does not have cover in respect of the injury; or
(b)
Notwithstanding that the person has cover in respect of the injury, the Corporation is satisfied that there are such special circumstances as to make it reasonable and proper that ex gratia provision should be made additional to any compensation or rehabilitation assistance that would otherwise be available,—
the Corporation may, subject to the prior approval of the Minister of Finance, pay and provide, on an ex gratia basis, compensation and rehabilitation assistance on such terms and conditions and of such amount and nature as, having regard to all the circumstances of the case, it considers appropriate.
(2)
Notwithstanding anything in this Act, no application for review or appeal under Part IX of this Act may be made, nor shall any other remedy whatever be available, in respect of any decision of the Corporation under or in relation to this section.
Compare: 1972, No. 43, s. 179a; 1973, No. 113, s. 5
119 Offences
(1)
If any person evades, or attempts to evade, or does any act with intent to evade, or makes default in the performance of any duty imposed upon him by this Act or the regulations thereunder with intent to evade, the determination or payment of any sum which is or may become chargeable against him by way of levy (which sum is hereinafter referred to as the deficient levy), or if any person makes any false statement or false representation with intent to obtain for himself or any other person rehabilitation assistance or compensation to which the recipient is not entitled (any amount so paid and the amount of the value of any other rehabilitation assistance so given being hereinafter referred to as the excess amount), he commits an offence and is liable on conviction on indictment to a fine not exceeding $500 or treble the amount of the deficient levy or excess amount (as the case may be), whichever is the greater.
(2)
Every person commits an offence and is liable on summary conviction to a fine not exceeding $500 who—
(a)
Refuses or fails to furnish any statement or information for the purposes of this Act as and when required by or under this Act or the regulations made thereunder and, if the offence is a continuing one, to a further fine not exceeding $25 for every day during which the offence continues; or
(b)
Wilfully or recklessly makes and delivers to the Corporation or any agent of the Corporation any false statement, or gives any false information to, or misleads or attempts to mislead, the Corporation or any agent, committee, officer, or employee of the Corporation in relation to any matter or thing affecting his own or any other person’s liability to pay any levy, or right to claim rehabilitation assistance or compensation, under this Act; or
(c)
Aids, abets, or incites any other person to commit any offence against this Act or against any regulations made thereunder.
(3)
Any person who is in receipt of compensation under section 59 of this Act and who fails to advise the Corporation as soon as practicable if there is any increase in the amount of his earnings derived after the date of the accident that would reduce the amount to be paid to him in respect of earnings related compensation, commits an offence and is liable on summary conviction to a fine not exceeding $500.
(4)
Every person who commits an offence against this Act or any regulations made thereunder for which no penalty is provided in this Act or in any regulations made thereunder elsewhere than in this section is liable on summary conviction to a fine not exceeding $500.
(5)
Any information may charge the defendant with any number of offences against this Act (whether arising under this section or otherwise) or against any regulations made thereunder, if those offences are founded on the same set of facts, or form or are part of a series of offences of the same or a similar character.
(6)
Where any information charges more than one such offence, particulars of each offence charged shall be set out separately in the information.
(7)
All such charges shall be heard together unless the Court, either before or at any time during the hearing, considers it just that any charge should be heard separately and makes an order to that effect.
(8)
Notwithstanding anything in section 14 of the Summary Proceedings Act 1957 or in any other Act, any information in respect of any offence against this Act, or against any regulations made thereunder, for which a person is liable on summary conviction to a fine may be laid at any time within 5 years after the termination of the year in which the offence was committed.
Compare: 1972, No. 43, ss. 136, 180
120 Regulations and Orders in Council
(1)
The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
Prescribing the rates of payments and contributions that may be made to, or in respect of the services of, consultants, referees, specialists, and members of committees under section 16 of this Act:
(b)
Regulating and restricting the extension under section 30(3) of this Act of the application of section 30(2):
(c)
Prescribing conditions under which penalty rates of levy and rebated rates of levy and a penalty or a safety-incentive bonus may be imposed or allowed under section 40 of this Act:
(d)
Prescribing requirements, either generally or in relation to any class or group of employees or self-employed persons, as to the delivery of statements, the payment of levies, and the financial year in relation to which the earnings to be shown in any such statement are to be determined for the purposes of this Act, whether in addition to or in place of any requirements prescribed by this Act:
(e)
Prescribing methods by which the Corporation may exercise its powers and discretions under sections 53 and 59 of this Act:
(f)
Prescribing the circumstances in which, the extent to which, and the method by which the Corporation shall, in accordance with section 75 of this Act, pay the cost of treatments and medical certificates in respect of which payments are to be made under that section, and may enter into arrangements and make contributions under that section; and prescribing the persons to whom those payments may be so made:
(g)
Prescribing restrictions on the circumstances in which and the extent to which the Corporation shall make payments under sections 76 and 77 of this Act:
(h)
Prescribing the maximum amount that may be paid in respect of the funeral expenses of any person under section 81 of this Act:
(i)
Prescribing restrictions and conditions as to the frequency of medical examinations under section 87 of this Act, and the manner in which they are to be conducted:
(j)
Prescribing restrictions on the circumstances in which and the extent to which the Corporation may allow costs under section 102(15) of this Act:
(k)
Prescribing procedures in connection with appeals under Part IX of this Act:
(l)
Prescribing forms and registers required in connection with the reporting, notification, and recording of accidents, and in connection with claims for and the provision or payment of rehabilitation assistance and compensation under this Act:
(m)
Prescribing forms of medical certificates and reports:
(n)
Prescribing requirements in respect of the information to be supplied in support of claims for rehabilitation assistance and compensation and in relation to the personal injuries to which the claims relate and the accidents by which they were caused:
(o)
Prescribing the respective responsibilities of employers and employees for supplying statements and reports (including confirmatory statements and reports) in respect of accidents:
(p)
Providing in any special class or classes of cases for the modification of the procedures prescribed by or under this Part of this Act, or the substitution of different procedure, in connection with the reporting, notification, and recording of accidents, and in connection with the manner of making claims for rehabilitation assistance or compensation under this Act:
(q)
Prescribing offences in respect of contravention of or non-compliance with any regulations made under this Act or any requirement or direction made or given pursuant to any such regulation; and prescribing penalties not exceeding $500 in respect of any offences prescribed under this paragraph:
(r)
Providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.
(2)
In the absence of any such regulations under any of paragraphs (1) to (p) of subsection (1) of this section, or so far as any such regulations do not extend, the Corporation may, subject to this Act, from time to time determine the forms and registers to be used and the procedure to be followed for or in connection with all or any of the purposes specified in those paragraphs.
(3)
Without limiting the Acts Interpretation Act 1924, no Order in Council or regulation under this Act shall be invalid because it leaves any matter to the discretion of the Corporation or because it authorises the Corporation to give any consent or approval on or subject to conditions to be imposed or approved by the Corporation.
Compare: 1972, No. 43, ss. 152, 181
121 Dissolution of Workers’ Compensation Board
All money and investments standing to the credit of the Uninsured Employers’ Claims Account and of the Occupational Safety Trust Account (being the Accounts of the same names set up by Part II of the Accident Compensation Amendment Act 1975) shall, as from the commencement of this Act, vest in the Corporation, subject to all liabilities and charges affecting that money and those investments.
122 Repeals, revocations, and savings
(1)
Subject to subsections (3) and (4) of this section, the enactments specified in Part I of the Second Schedule to this Act are hereby repealed.
(2)
Subject to subsection (5) of this section, the Orders in Council and regulations specified in Part II of the Second Schedule to this Act are hereby revoked.
(3)
Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby declared that the repeal of—
(a)
Sections 11, 42(3) and (4), and 184 of the Accident Compensation Act 1972; and
(b)
Section 62 of the Accident Compensation Amendment Act (No. 2) 1973; and
(c)
Section 10(4) of the Accident Compensation Amendment Act 1980,—
shall not affect the amendments made by those sections.
(4)
Subject to sections 65 and 76(4) of this Act, the provisions of sections 4 and 5 and Part VI of the Accident Compensation Act 1972 shall continue in force and apply in respect of personal injury by accident occurring on or after the 1st day of April 1974 and before the 1st day of April 1983 as if those provisions had not been repealed by subsection (1) of this section.
(5)
Notwithstanding the revocation of any Order in Council or regulation by this section, the provisions of every such Order in Council or regulation shall continue in force and operate in respect of personal injury by accident occurring on or after the 1st day of April 1974 and before the 1st day of April 1983 as if such revocation had not been made.
(6)
All proceedings in respect of offences committed or alleged to be committed before the commencement of this Act against any enactment hereby repealed may be instituted or continued as if this Act had not been passed.
(7)
All applications for review, appeals to the Appeal Authority, and appeals to the High Court or the Court of Appeal commenced under Part VII of the Accident Compensation Act 1972 may be continued under the corresponding provisions of Part IX of this Act.
(8)
Every reference in any enactment or document whatever to the Accident Compensation Commission shall, unless the context otherwise requires, hereinafter continue to be read as a reference to the Accident Compensation Corporation.
Schedules
First Schedule Compensation for Permanent Loss or Impairment of Bodily Function
Section 78
| Nature of Permanent Loss or Impairment of Bodily Function | Percentage of $17,000 Payable |
|---|---|
| Loss of Part of Body | |
| 1. Total loss of an arm or the greater part of an arm | 80 |
| 2. Total loss of a hand or of the lower part of an arm | 70 |
| 3. Total loss of a thumb | 28 |
| Total loss of one segment of a thumb | 14 |
| Loss of the pulp of a thumb | 8 |
| 4. Total loss of an index finger | 14 |
| Total loss of two segments of an index finger | 12 |
| Total loss of of one segment of an index finger | 8 |
| Loss of the pulp of an index finger | 4 |
| 5. Total loss of the middle finger | 12 |
| Total loss of two segments of a middle finger | 10 |
| Total loss of one segment of a middle finger | 8 |
| Loss of the pulp of a middle finger | 3 |
| 6. Total loss of a ring or small finger | 8 |
| Total loss of two segments of a ring or small finger | 6 |
| Total loss of one segment of a ring or small finger | 4 |
| Loss of the pulp of a ring or small finger | 2 |
| 7. Total loss of all fingers, thumb intact (Treat as 90 percent of loss of a hand) | 63 |
| 8. Total loss of a leg | 75 |
| Total loss of a foot or of the lower part of a leg | 60 |
| 9. Total loss of a great toe | 10 |
| Loss of one segment of a great toe | 5 |
| 10. Total loss of a lesser toe | 2½ |
| 11. Total loss of both legs by above-knee or below-knee amputation | 100 |
| 12. Loss of both arms, above-elbow or below-elbow amputation | 100 |
Note: For the purposes of section 78 of this Act, when applying the foregoing provisions of this Schedule for the purpose of assessing permanent loss or impairment of bodily function affecting the hand and its digits, if multiple digits are involved assessment shall be made both by summating the individual losses specified in the foregoing provisions of this Schedule, and on the basis specified in subsection (3) of that section in relation to the permanent loss or impairment of bodily function affecting the hand or lower arm as a whole as a gripping organ.
In relation to the last-mentioned method of assessment, complete loss of finger/palm grip in all its components shall be treated as constituting 60% loss of function of the hand, and complete loss of opposition or pincers grip shall be treated as constituting 40% loss of function of the hand, these figures to be apportioned into four equal parts for the individual digits.
Example: Finger/Palm Grip—
| Index | Middle | Ring | Little finger |
| 15% | 15% | 15% | 15% loss of function of hand, equalling altogether 60% of loss of function of hand. |
Opposition or Pincers Grip—
| Index | Middle | Ring | Little finger |
| 10% | 10% | 10% | 10% loss of function of hand, equalling altogether 40% of loss of function of hand. |
The higher figure arrived at after assessment by both these methods shall be the figure awarded.
If in the case of injury to a limb or part of a limb it is considered desirable in order to obtain the best functional result that the limb or portion or the limb be amputated at a more proximal level than the part injured, the disability shall be assessed as if the injury itself had necessitated the amputation at the more proximal level.
Assessment of Arthrodeses
The following figures are to be used for a sound arthrodesis in the position of optimum function, partial joint stiffnesses to be proportionally assessed under section 78(3) of this Act.
| Shoulder | Treat as 35% loss of function of the arm | 28 |
| Elbow | Treat as 40% loss of function of the arm | 32 |
| Wrist | Treat as 30% loss of function of the lower arm | 21 |
| Hip | Treat as 50% loss of function of the leg | 37.5 |
| Knee | Treat as 40% loss of function of the leg | 30 |
| Ankle | Treat as 35% loss of function of the lower leg | 21 |
| Triple (foot arthrodesis) | Treat as 30% loss of function of the lower leg | 18 |
Assessment of Shortening
| Up to 12.5 mm | Treat as 5% loss of function of the leg | 3.75 | |
| Exceeding 12.5 mm but not exceeding 25 mm | Treat as 10% loss of function of the leg | 7.5 | |
| Exceeding 25 mm but not exceeding 37.5 mm | Treat as 15% loss of function of the leg | 11.25 | |
| Exceeding 37.5 mm but not exceeding 50 mm | Treat as 20% loss of function of the leg | 15 |
Patellectomy
| Where there is full extension of the knee and full flexion in the knee with minimal quadriceps thigh muscle wasting, treat as 15% loss of function of the leg, this figure to be varied in less successful results related to residual joint stiffness | 11.25 |
Excision of Head of Radius
| Where full elbow extension and flexion movement is regained with full forearm rotation movement in either direction, treat as 15% loss of function of the arm, this basic figure to be varied in less successful cases related to residual joint stiffness | 12 |
Excision of Lower End of Ulna Forearm Bone
| Where full forearm rotation movements are preserved and the wrist is normal, treat as 10% loss of function of the lower arm, this figure to be varied in less successful cases related to residual joint stiffness | 7 |
Ligamentous Injuries of the Knee Joint with Residual Instability and Including Quadriceps Insufficiency with Comparable Instability
| Moderate laxity | Treat as 15% loss of function of the leg | 11.25 |
Multiple Disabilities
If the disability affects more the one limb the assessment shall be made by summating the figures, but if the disabilities involve the one limb the method of progressive extraction of losses, i.e., regarding the limb as a whole shall be used.
Spinal Disability and Other Disabilities
1.
Cervical Spine
| (a) Persistent muscle spasm, rigidity, and pain substantiated by loss of anterior curve revealed by X-ray, although no demonstrable structural pathology, moderate referred shoulder/arm pain | 10 |
| (b) In cases similar to those mentioned in the immediately preceding paragraph, but with gross degenerative changes consisting of narrowing of intervertebral spaces and osteoarthritic lipping of vertebral margins | 20 |
2.
Thoracic Spine
| (a) Spinal strain related to trauma with persistent discomfort, moderate degenerative changes with osteoarthritic lipping, no X-ray evidence of structural trauma | 10 |
| (b) Fracture: | |
| (i) Compression 25% involving one or two vertebral bodies, no fragmentation, healed, no neurologic manifestations | 10 |
| (ii) Compression 50% with involvement posterior elements, healed, no neurologic manifestations, persistent pain | 20 |
3.
Lumbar Spine
| (a) Mild to moderate persistent muscle spasm with pain, with moderate degenerative lipping revealed by X-ray | 10 |
| (b) Fracture: | |
| (i) Vertebral compression 25%, one or two adjacent vertebral bodies, little or no fragmentation, no definite pattern or neurologic change | 15 |
| (ii) Vertebral compression 50%, one or two adjacent vertebral bodies, little or no fragmentation, no definite pattern or neurologic changes | 20 |
| (iii) In cases similar to those mentioned in the immediately preceding subparagraph, but with successful fusion, mild pain | 25 |
4.
Neurogenic Low Back Pain—Disc Injury
| (a) Surgical excision of disc, no fusion, good result, no persistent sciatic pain | 10 |
| (b) Surgical excision of disc, no fusion, moderate persistent pain and stiffness aggravated by heavy lifting with necessary modification of activities | 20 |
| (c) Surgical excision of disc with fusion, activities of lifting moderately modified | 15 |
| (d) Surgical excision of disc with fusion, persistent pain and stiffness aggravated by heavy lifting necessitating modification of all activities requiring heavy lifting | 25 |
| 5. Tetraplegia and Paraplegia | 100 |
6.
Blindness
| (a) Total blindness | 100 |
| (b) Total loss of vision in one eye (normal vision in the other eye) | 30 |
7.
Deafness
| (a) Total deafness | 100 |
| (b) Total deafness in one ear (normal hearing in other ear) | 17 |
NOTE: Where there are subjective symptoms of pain without demonstrable clinical findings of abnormality or demonstrable structural pathology, no assessment should be made under section 78 of this Act.
8.
Total Loss of Natural Permanent Teeth
| 1. Anterior Teeth | |
| Loss of 1, 2, or 3 teeth | 4 |
| Loss of 4, 5, or 6 teeth | 5 |
| Loss of 7 to 12 teeth | 6 |
| 2. Posterior Teeth | |
| Loss of 1 tooth | 1 |
| Loss of 2 to 5 teeth | 2 |
| Loss of 6 to 16 teeth | 4 |
Second Schedule Repeals and Revocations
Section 122
Part I Enactments Repealed
1972, No. 43—The Accident Compensation Act 1972. (Reprinted 1975, Vol. 2, p. 1409.)
1973, No. 112—The Accident Compensation Amendment Act 1973. (Reprinted 1975, Vol. 2, p. 1631.)
1973, No. 113—The Accident Compensation Amendment Act (No. 2) 1973. (Reprinted 1975, Vol. 2, p. 1633.)
1974, No. 71—The Accident Compensation Amendment Act 1974. (Reprinted 1975, Vol. 2, p. 1640.)
1975, No. 136—The Accident Compensation Amendment Act 1975. (Reprinted 1975, Vol. 2, p. 1645.)
1977, No. 138—The Accident Compensation Amendment Act 1977. (1977, Vol. 3, p. 2709.)
1978, No. 36—The Accident Compensation Amendment Act 1978. (1978, Vol. 1, p. 296.)
1979, No. 70—The Accident Compensation Amendment Act 1979. (1979, Vol. 2, p. 1199.)
1980, No. 73—The Accident Compensation Amendment Act 1980. (1980, Vol. 2, p. 725.)
1981, No. 58—The Accident Compensation Amendment Act 1981. (1981, Vol. 2, p. 829.)
Part II Orders in Council and Regulations Revoked
1972, S.R. 1972/237—The Accident Compensation Act Commencement Order 1972. (1972, Vol. 2, p. 911.)
1973, S.R. 1973/128—The Accident Compensation Act Commencement Order 1973. (1973, Vol. 2, p. 959.)
1973, S.R. 1973/290—The Accident Compensation Act Commencement Order (No. 2) 1973. (1973, Vol. 3, p. 1763.)
1974, S.R. 1974/107—The Accident Compensation Motor Vehicle Levies Regulations 1973, Amendment No. 1. (1974, Vol. 1, p. 627.)
1974, S.R. 1974/269—The Accident Compensation (Prescribed Amounts) Order 1974. (1974, Vol. 3, p. 1751.)
1974, S.R. 1974/303—The Accident Compensation (Permanent Incapacity) Order 1974. (1974, Vol. 3, p. 2056.)
1976, S.R. 1976/77—The Accident Compensation Amendment Act Commencement Order 1976. (1976, Vol. 1, p. 447.)
1976, S.R. 1976/99—The Accident Compensation (Increased Amounts) Order 1976. (1976, Vol. 1, p. 552.)
1976, S.R. 1976/138—The Accident Compensation (Prescribed Amounts) Order 1976. (1976, Vol. 2, p. 695.)
1976, S.R. 1976/160—The Accident Compensation (Increased Amounts) Order (No. 2) 1976. (1976, Vol. 2, p. 932.)
1977, S.R. 1977/300—The Accident Compensation (Prescribed Amount for Section 118) Order 1977. (1977, Vol. 2, p. 1364.)
1978, S.R. 1978/138—The Accident Compensation (Prescribed Amounts) Order 1978. (1978, Vol. 1, p. 649.)
1978, S.R. 1978/139—The Accident Compensation (Increased Amounts) Order 1978. (1978, Vol. 1, p. 651.)
1979, S.R. 1979/16—The Accident Compensation (Prescribed Amount for Section 113) Order 1979. (1979, Vol. 1, p. 68.)
1979, S.R. 1979/176—The Accident Compensation Self-Employed Levy Payment Regulations 1979. (1979, Vol. 2, p. 925.)
1979, S.R. 1979/189—The Accident Compensation (Increased Amounts) Order 1979. (1979, Vol. 2, p. 990.)
1979, S.R. 1979/191—The Accident Compensation (Prescribed Amounts) Order 1979. (1979, Vol. 2. p. 1000.)
1979, S.R. 1979/247—The Accident Compensation (Prescribed Amounts) Order 1979, Amendment No. 1. (1979, Vol. 2. p. 1220.)
1979, S.R. 1979/264—The Accident Compensation (Increased Amounts) Order (No. 2) 1979. (1979, Vol. 2, p. 1308.)
1980, S.R. 1980/180—The Accident Compensation (Increased Amounts) Order 1980. (1980, Vol. 3, p. 1377.)
1980, S.R. 1980/204—The Accident Compensation (Increased Amounts) Order (No. 2) 1980. (1980, Vol. 3, p. 1456.)
1981, S.R. 1981/45—The Accident Compensation (Prescribed Amounts) Order 1981. (1981, Vol. 1. p. 201.)
1981, S.R. 1981/113—The Accident Compensation (Increased Amounts) Order 1981. (1981, Vol. 1, p. 513.)
1981, S.R. 1981/203—The Accident Compensation Employer Levy Payment Regulations 1981. (1981, Vol. 2, p. 917.)
1981, S.R. 1981/336—The Accident Compensation (Increased Amounts) Order (No. 2) 1981. (1981, Vol. 3, p. 1804.)
This Act is administered by the Accident Compensation Corporation.
Versions
Accident Compensation Act 1982
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