KL v Accident Compensation Corporation
[2017] NZHC 1870
•8 August 2017
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 RespondentJudgment:
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 medical evidence does not establish the applicant’s entitlement to cover for mental injury under s 20.
Leave to appeal
[7] The High Court may grant special leave to appeal on a question of law.4
[8] A decision-making body commits an error of law if it:5
(a) misinterprets, and so misdirects itself on, the law;
(b) overlooks any relevant matter to the proper application of the law;
(c) takes account of any matter which is irrelevant to the proper application of the law; or
(d)reaches an ultimate conclusion on the facts which is insupportable – clearly untenable – because the proper application of the law requires a different answer.
[9] The principles which apply to applications for special leave are articulated in Gilmore v Accident Compensation Corp:6
(a) the purpose of acquiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart;7
(b) although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision and that there is a reasonable prospect of success: Sandle; Manawatu Co- op Dairy Company Ltd v Lawry;8
(c) the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Ltd;9
(d) it is for the applicant to show that leave is required in the interests of justice: Avery v No 2 Public Service Appeal Board;10
4 Section 162 of the Act.
5 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52]; and Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[27].
6 Gilmore v Accident Compensation Corp [2016] NZHC 1594 at [27], citing Kenyon v Accident
Compensation Corp [2002] NZAR 385 (HC) at [15].
7 Sandle v Stewart [1982] 1 NZLR 708 (CA).
8 Manawatu Co-op Dairy Company Ltd v Lawry [1988] DCR 509.
9 O’Loughlin v Healing Industries Ltd (1990) 1 NZPC 479.
10 Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).
(e) as leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Ltd.11
[10] By his decision dated 18 August 2016, District Court Judge Harrison declined the applicant leave to appeal to the High Court. The applicant had advanced seven grounds in support of the application for leave. The first two grounds pertained to the construction of s 20(4) and the subsequent five grounds to the medical evidence.
[11] The Judge said:
[33] This is clearly a question of law involving, as it does, the correct interpretation of the relevant sections of the Act.
[34] However, I accept the submission of counsel for [ACC] that the wording of s 20(4) is unambiguous. It states quite clearly that a person who suffers personal injury that is mental injury and has cover under s 21, cannot have cover under s 20.
…
[37] The remaining five grounds of appeal do not raise questions of law. They challenge the evidential findings of the Judge that the evidence did not establish that the applicant’s mental injury was caused by any physical injury.
[38] It is trite law that “care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed”. Northland Co-Op Dairy Co Limited v Rapana [1999]
1 WEENZ 361, 363 (CA).
[39] The applicant called no evidence to support any causal connection. While he challenges some of the comments of Dr Stoner as undermining his conclusion, the difficulty for the applicant is that there was no specialist medical evidence supporting his claim, and the Judge was clearly entitled to reach the conclusion she did.
[40] That being so, even if leave was granted under the first issue, the appeal would be otiose because the applicant has been unable to establish any causal link between the mental injury and any physical injury.
11 Brown v Chowmein Fashions Ltd (1993) 7 PRNZ 43 (HC).
Analysis
Further detail on the background facts
[12] The applicant was sexually assaulted in July 2007. At the time, he was in full time employment, which, according to another District Court decision, ceased on
3 August 2007.12
[13] Cover for mental injury under s 21 of the Act was accepted on 19 September
2007.
[14] On 12 July 2012, the applicant lodged a claim for physical injury under s 20(1)(b). ACC accepted this claim.
[15] The result of this timeline is that the applicant is not entitled to weekly compensation. Although he was employed at the time of the assault, his application for cover for mental injury under s 21 was not made within the requisite number of days after his employment ceased to enable him to qualify for weekly compensation. This is because of how the relevant dates of injury are assessed under the Act. The date on which a person suffers mental injury in the circumstances described in s 21 is
the date on which the person first receives treatment for that mental injury.13
However, the date on which a person suffers mental injury because of physical injuries is the date on which the physical injuries are suffered.14 Although weekly compensation is available for mental injury covered by s 21, the injured person must have either been in employment at or ceased employment within a specified period of the date of the injury in order to qualify for weekly compensation.15 The issue in this case has arisen because the applicant is not entitled to weekly compensation for his mental injury covered under s 21 given the injury is deemed to have occurred when he first sought treatment on 21 August 2007 and he ceased to be in
employment outside the specified period.
12 KL v Accident Compensation Corp [2016] NZACC 328. The applicant intends to appeal this decision.
13 Section 36(1).
14 Section 36(2).
15 Schedule 1, cl 43. At the relevant time, the specified period was 14 days.
[16] If the applicant is able to bring his claim under s 20, then the physical injuries suffered by him occurred when he was still in employment and he would be eligible for weekly compensation.
The Act
[17] The two sections at issue in this case are ss 20 and 21, which relevantly provide:
20Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts or work-related mental injury)
(1) A person has cover for a personal injury if—
(a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and
(b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and
(c) the personal injury is described in any of the paragraphs in subsection (2).
(2) Subsection (1)(c) applies to—
(a) personal injury caused by an accident to the person:
…
(4) A person who suffers personal injury that is mental injury in circumstances described in section 21 has cover under section 21, but not under this section.
21 Cover for mental injury caused by certain criminal acts
(1) A person has cover for a personal injury that is a mental injury if—
(a) he or she suffers the mental injury inside or outside
New Zealand on or after 1 April 2002; and
(b) the mental injury is caused by an act performed by another person; and
(c) the act is of a kind described in subsection (2). (2) Subsection (1)(c) applies to an act that—
(a) is performed on, with, or in relation to the person; and
(b) is performed—
(i) in New Zealand; or
(ii) outside New Zealand on, with, or in relation to a person who is ordinarily resident in New Zealand when the act is performed; and
(c) is within the description of an offence listed in Schedule 3.
…
[18] Schedule 3 of the Act contains a list of mainly sexual offences ranging from indecent assault to female genital mutilation.
The issues
[19] The first two questions of law relate to s 20(4).
[20] The first poses a question of law as to whether s 20(4) prevents the acceptance of cover for mental injury suffered because of physical injuries if there is existing cover for mental injury under s 21. I accept ACC’s submission that this is closely tied to the second question of law, which is whether s 20(4) prevents the acceptance of cover under ss 20(1)(b) and 26(1)(c) for mental injury suffered because of physical injuries arising from any of the offences listed in sch 3.
[21] The first question can be answered relatively easily. ACC does not contend that, if cover has been provided under s 21 but there is sufficient evidence the mental injury was suffered because of a physical injury, cover cannot be accepted under s 20. Mr Tuiqereqere, appearing for ACC, refers to the ability of ACC to revise its decisions in the case of error, whatever the reason.16 Therefore, if there is evidence to satisfy ACC of a mental injury suffered by a person because of physical injuries suffered by that person, ACC can determine that cover should properly be provided under s 20 rather than s 21. This must be correct and I see no need for a question of law to be referred to the High Court to confirm this.
[22] The real question is the relationship between ss 20 and s 21. ACC’s position
is that, if mental injury is caused by a criminal act listed in sch 3 (a specified criminal act), then cover occurs under s 21. Physical injuries which might have been
16 Section 65.
suffered as a result of the specified criminal act are covered under s 20. How mental injury is dealt with is then a question of fact as to the cause of that mental injury. If the cause of mental injury is the specified criminal act, then cover is provided under s 21. If the cause of mental injury is the physical injury, then cover is provided under s 20. The Act does not, however, provide for cover under s 20 for mental injury caused by a specified criminal act, even if there is associated physical injury. In Mr Tuiqereqere’s submission, it is, in each case, a question of fact and causation.
[23] Mr McGurk appeared for the applicant. In his submission, there is authority for the proposition that mental and physical injuries cannot be separated when both arise from the same event. He referred to the explanation given by Gendall J in Robertson v Attorney-General:17
[39] The difficulty with such a proposition is that as a matter of proof it is often difficult, and in this case may well be impossible, to separate mental and physical consequences of an event or accident where both types of injury occur at the same time, or arise from the same event. A person can be in an accident and suffer this disorder, but also as in Palmer, simply through being a witness/bystander to the traumatic event. But where there has been an accident and injury to the claimant, in those circumstances separation of the physical and mental aspects, functions and conditions of a person may be impossible. A human being is made up of many components. They all interact, as psychosomatic disorders or conditions illustrate. Some may have effects upon others (such as a physical condition may affect the emotional or mental, and vice versa). So for example, post-traumatic stress disorder can and does arise from traumatic events involving physical injury as well as, in some circumstances arising without physical injury. The disorder often involves physical symptoms such as physiological reactivity, panic attacks, palpitations, perspiration, hyperventilation and other anxiety related symptoms. Of course those are still only symptoms of the injury and not the injury itself.
[24] The issue of causation was addressed again by Gendall J in Comerford- Parker v Accident Compensation Corp, where he once more made reference to the possibility of multiple causes of mental injury.18 Addressing causation directly, his Honour said:
[24] Issues of causation or consequences, involve both matters of law and fact. It will be an issue of law whether particular acts are capable of being causative of other acts, or if the later condition results from what is said to be a cause and is sufficiently proximate. But it will be a question of fact
17 Robertson v Attorney-General HC Palmerston North CP16/01, 12 August 2002.
18 Comerford-Parker v Accident Compensation Corp [2011] NZAR 481 (HC) at [22].
whether the essential connection is established so that the mental harm results from the injury.
[25] The distinction between the types of injuries suffered by a person and their causation is at the heart of the issues in this case. While causation might be a difficult issue and in some instances impossible to separate, the Act includes mental injury in the definition of personal injury as:
26 Personal injury
(1) Personal injury means—
…
(c) mental injury suffered by a person because of physical injuries suffered by the person; or
(d) mental injury suffered by a person in the circumstances described in section 21; …
[26] In the case of mental injury, the question is therefore whether the injury is suffered because of physical injuries or whether the mental injury is caused by an act performed by another person. It is a matter of the facts of the particular case.
[27] The Supreme Court decision in Allenby v H, emphasised the distinction when considering whether pregnancy following a failed sterilisation procedure was covered by the Act.19 In that context, the Court observed:
[73] It is true that s 21, which gives cover for mental injury caused by an act performed by another person where the act is of a kind within the description of certain offences, including sexual violation by rape, does not expressly confer cover for pregnancy as was the case under the legislation before 1992. But that is because it is dealing with cover for mental injury only. The evident purpose of the section is to extend cover to a victim of an act falling within the description of a listed offence where the victim has suffered mental injury but no physical injury, and so would not otherwise have suffered a personal injury as defined in s 26. Under the latter section, mental injury is classed as personal injury only when suffered because of physical injuries or when suffered in the circumstances described in s 21.
[28] The High Court decision of Murray v Accident Compensation Corp involved six applicants for leave to appeal having been denied weekly earnings related
19 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.
compensation.20 In that case all were in employment at the time of incapacity but not at the time of injury. The High Court held, in light of Allenby, that interference with bodily integrity involved in sexual abuse, without there also being an appreciable and not wholly transitory impact to bodily tissue or skeletal structure, would not be physical injury.21
[29] This, in my assessment, supports ACC’s interpretation of the provisions. That is, notwithstanding the seriousness of violation inherent in sexual assault, there may still not be physical injury. I accept there may be issues concerning causation, but that can only be considered on a case by case basis.
[30] The relationship between ss 20 and 21 is plain. That mental injury caused by a specified criminal act is not covered under s 20 but is covered under s 21 is emphasised in three ways. First, the wording of s 20(4) says exactly that. Secondly, s 20(1) provides cover for personal injury is available if the physical injury is of the kind described in s 26(1)(a), (b), (c) or (e). This specifically omits the injury described in s 26(1)(d), which is mental injury suffered by a person in the circumstances described in s 21. Thirdly, the heading to s 20 specifies the section is in respect of personal injury “except mental injury caused by certain criminal acts”.
[31] There may be anomalies and perceived unfairness in the way in which the Act operates. To give an example, if a person is at home and an aggravated burglary takes place, the person may receive compensation for physical injuries sustained as a result of the aggravated burglary and for mental injury, if that mental injury is suffered because of the physical injuries. However, if the person suffers mental injury only, and there is no physical injury, then, because aggravated burglary is not a specified criminal act, the person is not entitled to compensation. As pointed out by
the Court of Appeal and indeed referred to by the District Court Judge:22
It is not for the Courts to resolve problems or injustices which flow from the plain language of the legislation. It is for the legislature, if it sees fit, to amend the legislation so that it achieves the results desired by the legislature.
20 Murray v Accident Compensation Corp [2013] NZHC 2967.
21 At [60].
22 Accident Rehabilitation and Compensation Insurance Corp v Tarr [1996] 3 NZLR 715 (CA) at
721.
[32] This brings me to the third legal question. Simply because the mental injury and the physical injuries arose from the same event does not automatically mean causation of the injuries is the same. Mr McGurk essentially said it was impossible to separate the injuries because they occurred on the same day, and the fact ACC has provided cover for the physical injury must mean the physical and mental injuries had the same cause.
[33] The District Court Judge found a medical report from Dr Pavagada and the
2009 ACC review could not be relied upon to identify a link between the physical injury and mental injury because neither addressed the question. Furthermore, that:
[87] In respect to establishing any causal link between the physical injury and the mental injury I sought from the advocate for the appellant, any reference to any evidence in either of the two common bundles referred to the by applicant personally, or any of the reports, other than Dr Stoner’s report, referring to the issue of physical injury being the causation of the mental injury.
[88] The advocate was unable to refer any evidence before the Court on this issue.
[34] The Judge noted there was very little material, even in the original reports, of any physical symptoms or physical consequences for the appellant, noting the only physical outcome identified in a medical report dated 18 September 2007 was “itchy affected perineum area. He obtained medication for a rash”. The “injury consequences” in the sensitive claim form of 26 September 2007 “did not identify any physical injuries”. The Judge then considered the physical injury in respect of which cover was accepted, being for a “contusion perineum”. She considered the report of the psychiatrist, Dr Stoner, who in fact found it difficult to disentangle the applicant’s “presentation from the underlying and existing problems of bi-polar disorder and substance misuse”.
[35] The Judge then concluded:
[103] On the matters before me I do not find on the balance of probabilities that the appellant has established any causal connection between any physical injury relating to the event of July 2007 and the mental injuries from the same event.
[36] Part of the applicant’s argument was that Dr Stoner should not have considered whether the applicant had suffered a mental injury from the 2007 sexual assault. The applicant says, as cover had been granted, it was not open for Dr Stoner to reach a contrary view and therefore Dr Stoner’s opinion regarding the role of the applicant’s physical injury must be disregarded. He further contends no effort was made by Dr Stoner to view the covered physical injuries as part of the sexual assault.
[37] I agree with ACC that this issue involves a question of fact only, that is, whether there was sufficient evidence available for the District Court Judge to find the applicant had not established a causal relationship between his physical injury and the mental injuries for which he was seeking cover. I have already referred to the District Court Judge’s questions of counsel for the applicant at the District Court hearing to identify the evidence to support the requisite causal nexus. The Judge’s analysis showed she carefully considered the question. She did so without pointing out another obvious issue, which is that the physical injury was not claimed until July 2012, five years after the sexual assault. If the mental injury was indeed because of the physical injuries then an identification of the link between the two could reasonably have been expected at the time.
[38] The conclusion was clearly open to the District Court Judge on the evidence.
[39] Finally, I agree with ACC that all three issues identified must be answered in the applicant’s favour for him to succeed. If cover for mental injury is not permitted under s 20 where a claimant has cover under s 21, then the medical question has no significance. If the applicant cannot establish his mental injury is because of his physical injury, the application of s 20(4) is moot.
Result
[40] For the reasons given, the application is dismissed.
Thomas J
Solicitors:
John Miller Law, Wellington for Applicant
Medico Law Limited, Auckland for Respondent
0
4
0