W v Accident Compensation Corporation

[2017] NZHC 2553

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-Ā-TARA ROHE

CIV 2017-485-557 [2017] NZHC 2553

BETWEEN

W

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	18 October 2017
Counsel:	J Miller and L Newman for Applicant D Tuiqereqere for Respondent
Judgment:	19 October 2017

JUDGMENT OF SIMON FRANCE J

[1]      This  application  concerns  the  proper  interpretation  of  s 26(1)(c)  of  the Accident Compensation Act 2001.   At issue is the causal link required between physical injury and consequent mental injury.  The applicant wishes to contend that the changes to the legislation following ACC v E have been over emphasised, resulting in too high a causal link being required.  An incorporated issue is whether the removal of “accident” from the relevant legislation, thereby requiring the mental injury to be linked to the physical injury (rather than injury or accident) has disallowed coverage for mental injury flowing from the circumstances or consequences of an injury – eg the athlete who suffers depression because a broken

leg has cost her a place at the Olympics.

W v ACC [2017] NZHC 2553 [19 October 2017]

[2]      The Corporation’s position is that the law is settled, and the cases are just factual applications turning on the medical evidence.  That is arguably correct, but Ms Newman has satisfied me that there is a contrary view to be put that will be well researched and presented.

[3]      My primary hesitation in granting leave is whether W’s situation will fall within the test, however interpreted.  On its face, it would represent the tenuous end of a causation spectrum.  However, the applicant’s approach would accommodate it, and accordingly I have determined a grant of special leave is appropriate.

[4]      Leave will be given on the first two proposed questions.  I do not consider the third question, which purports to identify a burden of proof issue in relation to whether the evidence shows W to have made a claim in or around 1979, is seriously arguable.   Nor does it involve a question of law.   Rather, it is a challenge to the Court’s determination on the evidence.

[5]      Leave to appeal is given on the following questions (which overlap):

i.        What is the proper ambit and meaning of the words “because of” in

s 26(1)(c) of the Accident Compensation Act 2001?

ii.        Was her Honour correct to hold that a “direct” causal link between the  physical  injury  and  mental  injury  was  required  to  satisfy s 26(1)(c) of the Accident Compensation Act 2001 (mental injury suffered because of physical injury).

[6]      Once the appeal is filed, the parties should organise a fixture (one and a half days?) and then submit a consent memorandum concerning timetabling.

Simon France J