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High Court rules against ACC on how ‘personal injury’ should be defined

24 Mar 2023

| Author: Anna Longdill

Accident Compensation Act 2001 (ACC Act) ss 20(1)(a) and 26(1)(c) – appeal on point of law – mental injury suffered in New Zealand because of physical injuries suffered overseas (in Russia) – is there cover? – statutory interpretation – personal injury – text, purpose and context of the ACC Act

Accident Compensation Corporation v D [2023] NZHC 266 (Palmer J)

D was born in Russia in 2001. He was adopted by New Zealanders and emigrated to New Zealand in 2004, aged three. In November 2019, D was diagnosed with severe post traumatic stress disorder (PTSD), a mental injury caused by physical injuries he suffered before he was three, whilst in Russia.  He claimed for cover under the ACC Act. His claim was for personal injury as defined in s 26(1)(c) ACC Act, “mental injury suffered by a person because of physical injuries suffered by the person”.

The Accident Compensation Corporation (ACC) declined to accept D’s claim. This was upheld on review. The reviewer’s determination was appealed to the District Court.

The District Court allowed the appeal.  The key issue was the requirement in s 20(1)(a) ACC Act that a person “suffers the personal injury in New Zealand” – in D’s case, the physical injuries that caused the mental injury were suffered outside New Zealand, in Russia. The resulting mental injury (PTSD) had manifested many years later when D was in New Zealand.

The District Court held that D’s mental injury was suffered in New Zealand and that sufficed. Whilst he was not in New Zealand when the physical injuries occurred, this was not fatal to his appeal as he did not need to have ACC cover for his physical injuries – he simply needed to have suffered them.

The District Court rejected D’s alternative argument that he had cover under s 22(1)(c) ACC Act as he was ordinarily resident in New Zealand (as defined in s 17) at the time of the physical injuries.

ACC appealed (with leave of the District Court) on point of law to the High Court. ACC argued that a s 26(1)(c) personal injury was a composite injury consisting of two elements, such that D must demonstrate that both the mental injury and the physical injury which caused it were suffered in New Zealand.  Reliance was placed on s 36(2) which deems the date upon which a mental injury caused by a physical injury is suffered to be the date on which the physical injuries are suffered (which in this case, was prior to August 2004, when D was in Russia).

Statutory interpretation – personal injury – whether personal injury as defined in s 26(1)(c) is a composite injury or a mental injury with a specified cause – legislative history – case law – impact of Court of Appeal judgment in Accident Compensation Corporation v Monk [2012] NZCA 614, [2013] NZAR 1 holding that physical injuries from which mental injuries arise do not themselves need to be covered – effect and purpose of s 36(2) deeming provision – s 19 NZBORA right to freedom from discrimination – rights consistent interpretation of ACC Act provisions.

Held: ACC’s appeal is dismissed. Section 26(1)(c) is a mental injury with a specified cause (not a composite injury). D’s mental injury was suffered in New Zealand from 2019. The s 36 deeming provision only fixes the date on which mental injuries are suffered (in D’s case, before August 2004), it does not fix a location for those mental injuries. This interpretation is consistent with the purpose of the ACC Act and is the rights-consistent interpretation. D has cover under the ACC Act for his mental injury.

ACCIDENT COMPENSATION CORPORATION v D – BC202360266 (1)

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