$67 a week for cancer victim was ‘pathetic

An offer of $67 a week from the ACC to a man dying from asbestos-related lung cancer was an insult and pathetic, Wellington High Court was told yesterday.

John Miller, the lawyer for the estate of the Auckland man who has now died, Ross Lehmann, said the decision about whether a lump sum payment or a weekly allowance should be paid to certain asbestos victims was required under the law to consider what was fair.

"We are dealing with dying claimants who can't get any other compensation," Mr Miller said.

'We're really dealing with what is fair compensation."

However, Justice Lowell Goddard reminded Mr Miller that the ACC's appeal against a District Court ruling last August which awarded Mr Lehmann's estate a $100,000 lump sum payment was strictly about interpreting the statute.

Mr Lehmann died aged 79 in November 2003, about a year after he was diagnosed with asbestos-related lung cancer linked to his time as a welder and fitter 40 years earlier.

ACC said he was not entitled to a lump sum payment, but a $67.72 weekly independence allowance. Mr Lehmann died four days after the $67 payment was confirmed.

"We would say for a dying man it's an insult. It's a pathetic amount," Mr Miller said.

Counsel for the ACC, Bill Wilson QC, said the corporation had to implement the law which set out clearly who was and who was not entitled to a lump sum payment.

Mr Wilson said if a person's illness developed after April 2002, there was no entitlement to a lump sum payment.

Instead, the entitlement would be to an independence allowance.

Mr Wilson said the lawyers for Mr Lehmann's estate were trying to rewrite the law.

Much of the half-day hearing at the Court centred on technical arguments about which part of the law governing ACC entitlements applied to Mr Lehmann.

The two parties disagreed over the intent of a change in ACC law passed by Parliament just weeks ago, and which was debated by MPs who knew about the District Court finding in favour of Mr Lehmann's estate.

Mr Miller cited a health select committee report in which MPs said they would be concerned if any changes they made affected the case.

The MPs said they were "assured" by advisers the legal changes being considered would not affect the part of the law which enabled Mr Lehmann's estate to be awarded a lump sum.

Mr Miller said that made the intention of Parliament absolutely clear.

"It must be taken to have approved it. Mr Lehmann's case was fairly and squarely brought before them and Parliament did not change the law."

Mr Wilson said it could not be assumed what Parliament's decision not to explicitly change the law, one way or the other, meant.

He said the law change was irrelevant both in fact and law, and precedent meant it could not be considered. The appeal had to be viewed according to the law when the District Court made its ruling.

Justice Goddard noted the advisers to the select committee included ACC officials.

She said the law change did place the court in a slightly difficult position.

Justice Goddard reserved her decision.