W v Accident Compensation Corporation

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

CaseChat Overview and Summary

In W v Accident Compensation Corporation, the applicant, W, sought clarification on the interpretation of section 26(1)(c) of the Accident Compensation Act 2001, focusing on the causal link required between physical and mental injuries. The dispute arose from W's claim that the legislative amendments following ACC v E had led to an overly stringent requirement for causation, which in turn affected the scope of mental injuries covered under the Act. Specifically, the applicant argued that the removal of the term "accident" from the relevant provisions meant that mental injuries needed to be directly linked to the physical injury, rather than the injury or accident itself. The Accident Compensation Corporation defended the settled law, contending that the cases hinged on factual applications of medical evidence.

The central legal issues before the court were the interpretation of the phrase "because of" in section 26(1)(c) of the Act and whether a "direct" causal link was necessary to satisfy the provision. W contended that the requirement for a direct link was too stringent, potentially excluding mental injuries that flowed from the consequences of a physical injury, such as an athlete suffering depression due to a broken leg that cost them a place in the Olympics. The court had to determine whether W's situation fell within the acceptable ambit of the causal link, and if the proposed interpretation of the legislation was indeed too restrictive.

Simon France J granted leave to appeal on the specified questions, expressing a willingness to consider the applicant's argument that the causal link required under section 26(1)(c) might be too high. The judge acknowledged the tenuous nature of W's case on its face but noted that the applicant's approach could accommodate it. The court dismissed the third proposed question, which pertained to the burden of proof regarding a claim made in 1979, as it did not involve a question of law but rather a challenge to the court's determination on the evidence. The parties were instructed to organise a fixture for the appeal and submit a consent memorandum concerning the timetabling.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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