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Supreme Court upholds statutory bar on compensation for abused airforce staffer

26 May 2023

| Author: Jamie Dierick

Accident Compensation Act 1982, 1992, and 2001 – claim for compensatory damages – claims for assaults and mental injuries – whether assaults are the material cause of the mental injuries – claims barred by s 317 under current or former ACC Acts – Limitations Act 1950 – s 21B cover for mental injury caused by certain criminal acts

Robert Roper v Mariya Ann Taylor [2023] NZSC 49 (Glazebrook and Williams Young JJ)

Note: The High Court order prohibiting publication of name, address, or identifying particulars of the witness identified in [13], [64] and [65] of the judgment in M v Roper [2018] NZHC 2330 remains in force. Given the timing of the facts in the case the 1982, 1992, and 2001 Accident Compensation Act are each engaged in the case, and each of these are included in an appendix of the judgment

Mariya Ann Taylor joined the Royal New Zealand Air Force (RNZAF) in 1985 at the age of 18 and Robert Roper was her supervisor. Taylor says Roper bullied, verbally abused, sexually harassed, inappropriately touched, and falsely imprisoned her between 1985 and 1988. This included indecently assaulting her while she was driving him home late at night and regularly locking her and leaving her in a tyre cage.

She says she complained about his conduct, but the RNZAF failed to do anything about it.

Taylor sought compensation for post-traumatic stress disorder (PTSD) caused by Roper sexually assaulting and falsely imprisoning her in the late 1980s while both were employed by the RNZAF.

On the evidence, her PTSD developed shortly afterwards, albeit it was not diagnosed until much later and not linked to the assaults until 2015.

Taylor’s action failed in the High Court. While the court found Roper had assaulted and falsely imprisoned her and these actions had caused her post-traumatic stress disorder, the judge decided Taylor had not made formal complaints to Roper’s superiors.

The High Court held Taylor’s claims were barred under the Limitation Act 1950. The court stated, obiter, that she was covered for her mental injury arising from the assaults under the 1982 Act, and therefore her claim was barred under s 317(1)(b) of the 2001 Act.

The majority of the Court of Appeal overturned the High Court’s decision that Taylor’s claims were barred under the Limitation Act 1950. However, she was still not able to sue for compensatory damages for the assaults as she was barred under s 317(1)(a) and (b) of the 2001 Act. The majority did hold that Taylor was not barred for her false imprisonment claim, relying on the decision in Willis v Attorney-General [1989] 3 NZLR 574.

The Supreme Court granted in part an application by Roper and the RNZAF for leave to appeal against the Court of Appeal judgment and granted Taylor leave to cross-appeal.

The main issue before the Supreme Court was the application of the accident compensation (ACC) regime to Taylor’s claim.

On the cross-appeal, the Supreme Court, in agreement with the Court of Appeal, held Taylor had cover under the 1982 and 2001 Acts, which meant her claim for compensatory damages was barred under s 317(1)(a) and (b) of the 2001 Act.

In relation to the appeal from Roper and the RNZAF, the Supreme Court concluded unanimously s 317 of the 2001 Act has the effect of excluding any claim for compensatory damages. This is because the assaults were seen to be the material cause of the mental injury. Whether false imprisonment was also a material cause was seen as irrelevant as s 317 was engaged in either case.

Although not an issue on appeal, the Supreme Court also stated, obiter, the definition at s 21B(1)(a) (cover for mental injury caused by certain criminal acts) would be engaged, provided the episodes of false imprisonment were material causes of Taylor’s mental injury.

Held: The Supreme Court unanimously dismissed the cross-appeal and allowed the appeal.

Roper v R

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