LM v Accident Compensation Corporation

[2022] NZHC 567

ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT PURSUANT TO SECTION 160(1)(B) OF THE ACCIDENT COMPENSATION ACT 2001.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-594

[2022] NZHC 567

UNDER

the Accident Compensation Act 2001

IN THE MATTER OF

an appeal under s 162

BETWEEN

LM

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

14 March 2022

Appearances:

Applicant in Person

F Becroft for Respondent

Judgment:

25 March 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 25 March 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

LM v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 567 [25 March 2022]

[1]    LM seeks special leave to appeal the District Court’s dismissal of her appeal from two reviews that concerned decisions made by the Accident Compensation Corporation (the Corporation) relating to a sensitive claim.1 Leave to appeal that decision as being wrong in law was refused by that Court.2

Background

[2]    LM was sexually abused as a five-year-old in 1988. A sensitive claim in respect of that abuse was not lodged with the Corporation until 1997. After a considerable period of inaction and delay, further investigation by the Corporation resulted in LM eventually being  granted  cover  for  PTSD  on  8  June  2016.  On 10 November 2017, the Corporation advised that it had determined that LM had suffered personal injury by way of accident on 7 December 1988, being the date she was said to have first received treatment for her mental injury.

[3] The Corporation also determined, because the applicant’s claim was lodged in 1997, but was for an injury that had been incurred prior to the enactment of the Accident Rehabilitation Compensation Insurance Act 1992 (the 1992 Act), the claim was required to be considered in accordance with the transitional provisions of that Act. The applicable section provided cover for a personal injury which met both the definition of personal injury by accident under the preceding Accident Compensation Act 1982 (the 1982 Act) and would also otherwise qualify as a personal injury covered by the 1992 Act.3 The Corporation also noted at that time that, because both the 1982 Act and the 1992 Act had been repealed, the entitlements the Corporation could provide to LM were now governed by the transitional provisions of the 2001 Accident Compensation Act (the 2001 Act).

[4]    LM disputed the application of the 1992 Act to her claim. She contended she should not be assessed under the 2001 Act but that the 1982 Act, which was in force at the time she was sexually abused, applied. On 30 January 2018, the Corporation wrote to LM in response to her querying the Act under which she had cover. The

1      LM v Accident Compensation Corporation [2020] NZACC 145.

2      LM v Accident Compensation Corporation [2021] NZACC 141.

3      Accident Rehabilitation and Compensation Insurance Act 1992, s 135(5).

Corporation confirmed its position that the appellant’s 1997 claim attracted cover under the 1992 Act.

[5]    LM maintained her position that she should receive her entitlements under the 1982 Act and she subsequently applied to review both the original decision of the Corporation to accept the claim under the 1992 Act and its confirmation of that position. Both applications for review were dismissed and then appealed to the District Court.

The District Court decision

[6]    Judge Sinclair dealt with the two appeals in the same decision. The appeal from the review of the Corporation’s 30 January letter turned on whether that communication represented a new and therefore reviewable decision, or was simply a confirmation of the Corporation’s earlier determination regarding which of the Acts applied to LM’s claim. Judge Sinclair concluded the letter was not a decision capable of review because the confirmation of an existing decision did not create a new decision that was susceptible to review in its own right.4 However, that separate jurisdictional finding did not bear on the essential overarching position of LM, that she should receive cover under the 1982 Act.

[7]    In respect of that primary issue, Judge Sinclair was satisfied the Corporation had accepted LM’s 1997 claim under the correct Act. The Judge reasoned that, at the time the claim was lodged, the 1992 Act provided cover to claimants who, prior to its enactment, had suffered a personal injury by accident and otherwise would have had cover under the 1982 Act. Judge Sinclair found that, while the injury occurred in 1988 when the 1982 Act was in force, LM’s claim, that was not made until 1997, had to be determined in accordance with the law that applied at that time, which was the 1992 Act. The 1982 Act had by then been repealed.

The application for special leave

[8]Section 162 of the 2001 Act provides:

4      Applying Thomas v Accident Compensation Corporation DC Wellington Al578/04, 13 June 2006;

Estate of Adam Waenga v Accident Compensation Corporation [2006] NZAR 396 at [25].

162     Appeal to High Court on question of law

(1) A party to an appeal who is dissatisfied with the  decision  of  the  District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

…

(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

…

[9]    In Kenyon v Accident Compensation Corporation, Fisher J accepted the following summation of relevant considerations which this Court should bear in mind when considering applications for special leave:5

(a)The purpose of requiring leave for certain appeals is to ensure the scarce judicial time is allocated sensibly;6

(b)Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show 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;7

(c)The fact special leave is required is significant and suggests leave ought not to be granted as a matter of course;8

(d)It is for the applicant to show that leave is required in the interests of justice;9

(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.10

5      Kenyon v Accident Compensation Corporation [2002] NZAR 385 at 15.

6      Citing Sandle v Stewart [1982] 1 NZLR 708 (CA).

7      Citing Sandle v Stewart, above n 6; Manawatu Co-operative Dairy Co Ltd v Lawry [1988] DCR 509; Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43 (HC).

8      Citing O’Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464.

9      Citing Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).

10     Citing Brown v Chow Mein Fashions Ltd, above n 7.

[10]   Whether or not a statutory provision has been properly constructed or interpreted will be an issue that gives rise to a question of law. However, leave will only be granted if such a question is capable of bona fide and serious argument.11

[11]   In support of her application for special leave, LM filed extensive submissions that raised a raft of wide-ranging allegations against the Corporation relating to the adequacy of its investigation and challenging facts that appeared already agreed. These went so far as to allege various failures that were said to amount to obstruction of justice and perjury. Such matters go well beyond the issues to which LM’s appeal gave rise and fall well outside the question of whether there is an issue of law arising from the decision of the District Court, in respect of which special leave to appeal should be granted.

[12]   One dispute appeared to be whether LM received treatment in 1988 for the mental injury, as opposed to the physical effect, of the sexual abuse she was the victim of. In particular, LM did not accept she received treatment for mental injury on 7 December 1988. She did acknowledge first receiving treatment for the physical effect of the sexual abuse at Palmerston North Hospital on 8 December 1988. For reasons canvassed later in this judgment it was not necessary to resolve this issue.

[13]   The central substantive point raised by LM’s application remains that which she has constantly maintained, namely, that she should receive cover under the 1982 Act. As identified by Judge Clark when dealing with LM’s application to the District Court for leave to appeal, that primary issue turns on the wording of the relevant legislation and, in particular, the transitional provisions of the legislation now that both the 1982 Act and the 1992 Act have been repealed.

Analysis

[14]   By the time LM’s 1997 claim for the sexual abuse she suffered in 1988 was accepted and acted upon, both the 1982 Act and the 1992Act had been repealed and replaced by the 2001 Act. The new Act specifically made provision for claims made

11     Gilmore v Accident Compensation Corporation [2016] NZHC 1594.

for personal injury suffered prior to its operation. Those provisions are set out in Pt 11 of the 2001 Act, the purpose of which was described as follows:

352     The purpose of this Part

The purpose of this Part is to set out—

(a)how the Corporation is to determine under this Act whether or not a person has cover for a personal injury suffered before 1 April 2002, which may involve applying a former Act:

(b)the entitlements that the Corporation is required to provide under Part 4, this Part, and Schedule 1 for personal injury suffered before 1 April 2002 if such cover has been accepted:

…

[15]   Section 356(3) and (4) have application to the circumstances of LM’s claim. Those provisions provide:

356 Claim for cover lodged but not yet determined if injury suffered before 1 July 1992

…

(3)Subsection (4) applies to a claim for cover that—

(a)is for personal injury suffered before 1 July 1992; and

(b)was lodged with the Corporation on or after 1 October 1992 and before 1 July 1999; and

(c)was not determined before 1 April 2002.

(4)A claimant has cover under this Act only if the claimant would have had cover under both—

(a)the Accident Compensation Act 1982; and

(b)the Accident Rehabilitation and Compensation Insurance Act 1992.

…

[16]   The 1982 Act provided cover to persons who suffered personal injury by accident, which included the physical and mental consequences of any such injury or accident.12 There can be no dispute that LM would have had cover under the 1982 Act. However, her claim was not lodged until after the repeal of that legislation. In

12     Accident Compensation Act 1982, s 2.

1997, when her claim was lodged, the 1992 Act applied. The relevant transitional provision of that Act provided:

135     Relationship of this Act and former Acts

…

(5)Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the first day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that is covered by this Act.

[17]   The physical and mental consequences of the 1988 sexual abuse constituted personal injury covered by the 1992 Act, because such consequences fell within the meaning of that term under ss 4 and 8 of that Act:13

4.        Definition of “personal injury” —

(1) For the purposes of this Act, “personal injury” means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by s 8(3) of this Act.

…

8.        Cover for personal injury occurring in New Zealand—

…

(3) Cover under this Act shall also extend to personal injury that is mental or nervous shock suffered by a person as an outcome of any act of any other person performed on, with, or in relation to the first person (but not on, with, or in relation to any other person) which is within the description of any offence listed in the first schedule to this Act.

…

[18]   It follows that, because LM would have had cover under both the 1982 Act and 1992 Act, she therefore has cover under the 2001 Act, and her entitlements are required to be provided in accordance with that legislation.

[19]   This analysis of the relevant statutory provisions is premised on LM having suffered her personal injury before 1 July 1992, that being the relevant date stipulated

13     Accident Rehabilitation and Compensation Insurance Act 1992, s 3.

in s 356(3)(a) of the 2001 Act. As I understood LM’s argument, she does not accept that is the case, at least insofar as it relates to her mental injury. While it is clear she was the victim of sexual abuse in 1988 and received treatment for the physical effects of that abuse, I understand LM does not accept she received treatment at that time for the mental injury suffered as a result of the sexual abuse. In particular, she took issue with the contention she received treatment from a social worker prior to 8 December 1988.

[20]The 2001 Act defines personal injury as including:

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; or

…

[21]   Section 21 of the 2001 Act substantially mirrors s 8 of the 1992 Act and provides cover for a personal injury that is a mental injury caused by an act performed by another person within the description of an offence listed in the relevant schedule of the Act.14 Importantly, s 36 of the 2001 Act sets out the date on which a person is to be regarded as suffering mental injury:

36       Date on which person is to be regarded as suffering mental injury

(1)The date on which a person suffers mental injury in the circumstances described in section 21 or 21B is the date on which the person first receives treatment for that mental injury as that mental injury.

(2)The date on which a person suffers mental injury because of physical injuries suffered by the person is the date on which the physical injuries are suffered.

…

14     Accident Compensation Act 2001, sch 3.

[22]   The Corporation, in its decision of 10 November 2017, advised that it considered the date LM first received treatment for her “mental injury” should be the date of accident. It took 7 December 1988 to be that date. LM may have grounds to dispute that determination on the basis that, while she received treatment for any physical injuries suffered by her as a result of the sexual abuse, she did not receive treatment at that time for the mental injury caused as a result of those criminal acts. However, whether or not that aspect is open to contest, it does not assist LM in her argument that, because the sexual abuse occurred when the 1982 Act was in force, she ought to be covered under that legislation.

[23]   As was submitted by Ms Becroft on behalf of the Corporation, irrespective of the Act under which cover was initially granted, any entitlements that LM may now have arise out of and are governed by the 2001 Act. But for the transitional provisions set out in Pt 11 of the 2001 Act that extend cover under that Act to claims lodged before its enactment, past claims would effectively have been rendered redundant upon the repeal of the previous legislation. As submitted by Ms Becroft, the Act under which cover was granted is immaterial to the entitlements LM can now access under the 2001 Act, which is the only operative legislation.

[24]   The Corporation’s position is that LM has received various entitlements, allowances and treatment in accordance with its obligations under the current legislation. Whether that is so may be open to challenge but, in the absence of any existing statutory provision which would permit LM to obtain cover under the repealed 1982 legislation, the Corporation is obliged to deal with her claim for cover in accordance with the 2001 Act.

Conclusion

[25]   It follows from my analysis that I do not consider LM has identified any seriously arguable question of law warranting special leave to appeal. Her application must therefore be declined.

Result

[26]The application for special leave is dismissed.

Suppression

[27]   Because of the sensitive nature of the matters that are referred to in this case, an order was made in the District Court under s 160(1)(b) of the 2001 Act forbidding the publication of the name, address, or particulars likely to lead to LM’s identification. That order continues to apply. This decision is to be cited as LM v Accident Compensation Corporation.