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by the 1992 Act.3 The Corporation also noted at that time that, because both the 1982 Act and the 1992 Act had been repealed, the entitlements the Corporation could provide to LM were now governed by the transitional provisions of the 2001 Accident Compensation Act (the 2001 Act).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…

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: [2022] NZHC 567
Decision Date: 25 March 2022

CaseChat Overview and Summary

LM sought special leave to appeal the District Court's dismissal of her appeal from two reviews concerning decisions made by the Accident Compensation Corporation (ACC) regarding her sensitive claim. LM was sexually abused in 1988, and a sensitive claim was not lodged until 1997. The Corporation determined that LM had suffered personal injury by accident on 8 June 2016 and later confirmed that her claim was covered under the Accident Rehabilitation and Compensation Insurance Act 1992 (1992 Act). LM argued that her claim should be assessed under the Accident Compensation Act 1982 (1982 Act), which was in force at the time of her abuse.

The legal issues the court had to decide were whether the District Court correctly dismissed LM's appeal and whether there was a seriously arguable question of law warranting special leave to appeal. The court found that the Corporation had correctly applied the transitional provisions of the 2001 Act, which governs claims made before its enactment. The court also found that the date on which LM first received treatment for her mental injury was the date of the accident, which was 7 December 1988. Therefore, her claim was covered under the 1992 Act, and her entitlements are provided in accordance with the 2001 Act.

The application for special leave was dismissed, and the suppression order made in the District Court forbidding the publication of LM's name, address, or particulars that could lead to her identification continues to apply. This decision is to be cited as LM v Accident Compensation Corporation.

Orders