KL v Accident Compensation Corporation - [2017] NZHC 1870

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-745 [2017] NZHC 1870

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an application for special leave to

appeal to the High Court pursuant to s 162 of the Act

BETWEEN

KL Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 25 July 2017

Counsel:

T McGurk for Applicant
D K L Tuiqereqere for Respondent

Judgment:

8 August 2017

JUDGMENT OF THOMAS J

[1] The applicant seeks special leave to appeal to the High Court on a question of law1 against a decision of the Wellington District Court dated 19 November 2015.2
On 18 August 2016, the District Court refused leave to appeal.3

[2] The applicant was sexually assaulted in 2007. The respondent, the Accident Compensation Corporation (ACC), accepted an application for cover for mental injury in September 2007. ACC accepted the applicant’s claim for cover for physical injury in October 2012, but declined weekly compensation because the applicant’s incapacity was caused by mental injury, not the physical injury. In July 2013, ACC
refused the applicant’s application for cover for mental injury suffered because of

1      Pursuant to the Accident Compensation Act 2001, s 162.
2      KL v Accident Compensation Corp [2015] NZACC 355.
3      KL v Accident Compensation Corp [2016] NZACC 225.

KL v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 1870 [8 August 2017]

physical injury (the Decision). The grounds for the Decision were, first, because ACC saw s 20(4) of the Accident Compensation Act 2001 (the Act) as precluding cover under s 20(1)(b) for mental injury suffered because of physical injuries if cover for mental injury had already been granted under s 21. Secondly, ACC did not accept the applicant’s covered mental injury was suffered because of the covered physical injury.

[3] The applicant’s review of the Decision was dismissed in December 2013. [4] The District Court dismissed the appeal on 19 November 2015.
Application

[5] The applicant seeks special leave to appeal on the following questions of law:

(i) Does s 20(4) prevent the acceptance of cover under s 20(1)(b) and s 26(1)(c) for mental injury suffered because of physical injuries in circumstances where there is existing cover for mental injury under s 21?

(ii) Does s 20(4) prevent the acceptance of cover under s 20(1)(b) and s 26(1)(c) for mental injury suffered because of physical injuries arising from any of the offences listed in Schedule 3, including sexual assault?

(iii) Was the District Court correct in the way it assessed cover for mental injury suffered because of physical injuries under s 20(1)(b) in circumstances where both the mental injury and the physical injuries arose from the same event?

[6] ACC opposes the application. It accepts questions (i) and (ii) involve questions of law, but says the arguments have no merit and there is no real prospect of success in the High Court. ACC opposes special leave on question (iii) on the basis this is a question of fact disguised as a question of law. In ACC’s submission, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 1870
Decision Date: 8 August 2017

CaseChat Overview and Summary

KL was sexually assaulted in 2007. He sought cover for both his physical and mental injuries under the Accident Compensation Act 2001. The Accident Compensation Corporation accepted cover for his mental injuries in 2007 but later refused cover for his mental injuries that were allegedly suffered because of his physical injuries. KL sought special leave to appeal this decision to the High Court. The High Court found that the District Court correctly dismissed the appeal. The High Court found that the applicant had not established a causal connection between his physical injury and the mental injuries for which he was seeking cover. The High Court also found that, even if leave was granted under the first issue, the appeal would be otiose because the applicant had been unable to establish any causal link between the mental injury and any physical injury.

Orders