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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Beyond the letter of the law

Beyond the letter of the law
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New Zealand

A District Court decision granting ACC cover to a former soldier was an example of the court looking at the intention of the legislation rather than focusing on the “black letter of law”, says Wellington lawyer John Miller.

The former soldier, whose name is suppressed, developed post-traumatic stress disorder and depression after serving in Afghanistan. He was initially denied cover because both the NZ Defence Force and ACC took the view that his mental health issues arose from gradual process rather than a single traumatic incident, and were therefore ineligible for compensation. However these decisions were quashed by Judge Neil Maclean (Wellington DC, 20 September 2016).

Miller, a specialist in ACC law and principal in the eponymous law firm which represented the man, told Safeguard there would have been little trouble getting cover for his PTSD if he had experienced only one of the distressing events that occurred during his tour of duty. However, because s30 of the Accident Compensation Act specifically excludes work-related gradual-process injuries related to non-physical stress, the fact that he had been subjected to repeated rocket attacks, during which he saw others killed and on one occasion narrowly escaped death himself, witnessed the mid-air explosion of a helicopter with 16 people on board, and been involved in other traumatic incidents in both his work and private life, allowed ACC and NZDF to form the view that his condition did not meet the legislative requirements for cover.

Such a stance was “very restricted” Miller says, and disregarded s21B of the act, which states that cover is available for work-related mental injuries caused by a series of events when they arise from the same cause or circumstance, and together comprise a single incident or occasion

“Where the difference lies between a series of events and gradual process is always the dilemma. You have to compress what happened into a capsule, to show the series of events had a beginning and an end. We believe this was the situation during his second tour of duty in Afghanistan in 2009.”

Although, according to a consultant psychiatrist, the man was exposed to a “constellation of traumatic stressors” over nine years, the PTSD was most strongly linked to his 2009 tour of duty, during which he experienced frequent rocket attacks.

“On the one hand, because there was more than one frightening event, you can take a black letter approach and say let’s cut him out [from cover],” Miller says. “But on the other hand that doesn’t seem to have been Parliament’s intention with this legislation. The worse the situation, the less you interpret the law in their favour? That doesn’t seem to sit within the purpose of the act.”

Judge Maclean noted that while the wording of the s21B is open to interpretation, a generous reading was warranted. He was satisfied that the events were of the sort that the legislation intended to cover, being severe enough to have been harmful had they occurred as single incidents.

“The unusual circumstances in this case may not apply in other workplaces, but I think there is scope for more claims involving the Defence Force,” says Miller.

He is of the view the reason the NZDF didn’t appeal the DC decision is that a High Court decision sets a more powerful precedent.

“As things stand another District Court could take a different approach, but that would be more difficult had the decision been confirmed in the High Court.”



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From Alert24 - Safeguard Update

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