TN v Accident Compensation Corporation - [2022] NZHC 1280

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-000736

[2022] NZHC 1280

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an application under section 162 of the Act to appeal to the High Court on a question of law

BETWEEN

TN

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 17 May 2022

Appearances:

B H Woodhouse and B J Peck for the Appellant

S M Bisley and L W D Kibblewhite for the Respondent

Judgment:

1 June 2022

JUDGMENT OF COOKE J

Table of Contents

Relevant facts [2]

The statutory provisions [11]

Previous authorities [18]

Assessment [23]

The purpose of the provision: the legislative history [26]

How the purpose affects the text [35]

Relevance of long-standing practice [50]

Conclusions [54]

[1] TN appeals against the decision of the District Court upholding a decision of the Accident Compensation Corporation (the Corporation) that she is not entitled to

TN v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 1280 [1 June 2022]

earnings related compensation as a potential earner under s 105 of the Accident Compensation Act 2001 (the Act).1 It is accepted that TN has ACC cover because of the mental injuries inflicted on her arising from sexual abuse while she was a child. Potential earning compensation arises when a person suffers such mental injuries before turning 18 years of age which results in the person being unable to engage in work. The Corporation determined that TN’s injuries were deemed to have arisen when she first received treatment for those injuries as an adult. That arises as a consequence of the suggested application of s 36. She was found not to be entitled to compensation as a potential earner as a consequence. Neither is she entitled to standard earnings related compensation under s 103 as she was not in work when she was deemed to be injured. The District Court has upheld that decision. The essential issue on this appeal is whether the legislation does have this effect.

Relevant facts

[2] TN was the victim of multiple sexual offences committed against her by family members and associates between the ages of 2 and 15.

[3] Although TN disclosed the abuse to her parents as early as age seven she was told by her family she was not allowed to discuss it with others, and her family did not allow her to visit medical professionals unaccompanied. When she turned 16 she ran away from home. She was brought back by a man who her father then invited to stay in her room for several months. On one occasion the man forced her to have sex with his younger brother. As a consequence of that rape she conceived a child.

[4] TN would have disclosed the abuse and the mental injuries resulting from the abuse when she consulted her GP in relation to her pregnancy when she was 17 years old had her mother not been present at that consultation. At that stage the abuse…

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 1280
Decision Date: 1 June 2022

CaseChat Overview and Summary

TN appeals against the decision of the District Court upholding a decision of the Accident Compensation Corporation (the Corporation) that she is not entitled to earnings related compensation as a potential earner under s 105 of the Accident Compensation Act 2001 (the Act). The essential issue on this appeal is whether the legislation does have this effect. The statutory provisions relevant to this case are ss 21, 36, 103, 105 and 6 of the Act. The Court considered the purpose of the deeming provision in s 36 and how it affected the text of the provision. The Court concluded that the purpose of the provision was to avoid the harsh effects of a limitation period on those suffering mental injury arising from sexual abuse. The Court also considered the relevance of long-standing practice and concluded that the Court was not bound by earlier decisions which had not considered the purpose of the provision. The Court concluded that the purpose of the provision meant that the deemed date of injury in s 36 did not apply to the definition of “potential earner” in s 6. The appeal is accordingly allowed and the appellant’s claim is remitted to the Corporation for the purpose of assessing her entitlement to compensation under s 105 of the Act.

Orders