Landmark court decision paves way for compo
When Cynthia Jones walked into her son's hospital room after he plummeted 20 metres on a construction site, she could only recognise him by his flaming red hair.
For the past 40 years she has looked after her son Antony after he was left with serious disabilities from the accident with no payment for her time.
Now, she is part of a landmark court decision that could see hundreds of family caregivers compensated for their time.
In 1974 Mr Jones was 15 and working as a labourer when he fell from a plank between buildings at Waikato University.
Left with severe injuries including brain damage, he was unable to care for himself.
"He had everything smashed in his body, I didn't recognise him when I went into intensive care . . . his head was about twice, three times as big as normal, he had his legs up in the air, his bones were broken, his wrists broken. Everything except his spine."
Over the following decades Ms Jones provided care for her son in between part-time work with no caregiver compensation from the Accident Compensation Corporation, a task that became more difficult when her husband died six years after the accident.
Today Mr Jones has improved significantly but only has 15 per cent vision out of one eye and is blind in the other, has no sense of smell, is deaf in one ear and suffers epileptic fits.
He, along with 19 other severely disabled clients cared for by family members, took a test case for backdated caregiver pay to court.
They won, with a decision their cases should be reassessed, but ACC appealed to the High Court arguing that before 1992 attendant care and home help compensation was only paid when an expense was incurred by the injured person.
Since a family member gave their time up freely there were no costs involved.
But in his just released decision, Justice Alan MacKenzie upheld the original ruling and ordered ACC to reassess the claims.
"I can discern no reason why Parliament would have intended to exclude the possibility of ACC allowing . . . some payment to recognise the provision of unpaid care, which potentially saves the cost of a paid carer."
It was not appropriate to order automatic backpay and ACC had the right to assess the cases on their merits, he said.
ACC lawyer John Miller, who took the test case on behalf of the claimants, said the decision cleared the way for families to be compensated for years of hardship. Technically people injured before 1992 would have had to enter into contracts for paid caregiving with family members to receive compensation, he said.
"If you were rich enough to employ a nurse to look after your injured son or daughter then ACC would say ‘oh yeah we'll pay that'."
While the test case involved 20 people, the decision could affect hundreds of people injured before 1992.
Corporation spokeswoman Stephanie Melville said that, in 1992, the Accident Rehabilitation & Compensation Insurance Act resulted in significant changes, including in the attendant care area.
"Now, there is no requirement that an expense or loss be incurred before ACC can provide assistance."
It was important the legislation was properly interpreted and applied and the corporation was considering its position following the decision, she said.