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OSH Legislation

Schedule 3 Cover for mental injury caused by certain acts dealt with in Crimes Act 1961

Schedule 3
Cover for mental injury caused by certain acts dealt with in Crimes Act 1961
Section
 
[Indecent communication with young person under 16]
[Sexual violation]
[Attempted sexual violation]
[Assault with intent to commit sexual violation]
[Inducing sexual connection by threat]
[Inducing indecent act by threat]
[Incest]
[Sexual connection with dependent family member]
[Attempted sexual connection with dependent family member]
[Indecent act with dependent family member]
[Meeting young person following sexual grooming, etc]
[Sexual connection with child under 12]
[Attempted sexual connection with child under 12]
[Indecent act on child under 12]
[Sexual connection with young person under 16]
[Attempted sexual connection with young person under 16]
[Indecent act on young person under 16]
[Indecent assault]
[Exploitative sexual connection with person with significant impairment]
[Attempted exploitative sexual connection with person with significant impairment]
[Exploitative indecent act with person with significant impairment]
Compelling indecent act with animal
Assault on a child, or by a male on a female. For the purposes of this schedule, section 194 of the Crimes Act 1961 must be regarded as relating only to situations where a female sexually assaults a child under 14 years old.
Infecting with disease
Female genital mutilation
Further offences relating to female genital mutilation

History Note - Statutes of New Zealand

Schedule 3 was amended, as from 20 May 2005, by s 10 Crimes Amendment Act 2005 (2005 No 41) by substituting the items relating to ss 128 to 142 of the Crimes Act 1961.
Schedule 3 was amended, as from 7 May 2015, by s 4(1) Accident Compensation (Cover for Mental Injury—Indecency Offences) Amendment Act 2015 (2015 No 45) by inserting the item relating to s 124A of the Crimes Act 1961.
Schedule 3 was amended, as from 7 May 2015, by s 4(2) Accident Compensation (Cover for Mental Injury—Indecency Offences) Amendment Act 2015 (2015 No 45) by inserting the item relating to s 131B of the Crimes Act 1961.

Historical Versions - Statutes of New Zealand

Show the historical version (20 May 2005 to 6 May 2015)

Section
 
[128B(1)]
[Sexual violation]
[129(1)]
[Attempted sexual violation]
[129(2)]
[Assault with intent to commit sexual violation]
[129A(1)]
[Inducing sexual connection by threat]
[129A(2)]
[Inducing indecent act by threat]
[130]
[Incest]
[131(1)]
[Sexual connection with dependent family member]
[131(2)]
[Attempted sexual connection with dependent family member]
[131(3)]
[Indecent act with dependent family member]
[132(1)]
[Sexual connection with child under 12]
[132(2)]
[Attempted sexual connection with child under 12]
[132(3)]
[Indecent act on child under 12]
[134(1)]
[Sexual connection with young person under 16]
[134(2)]
[Attempted sexual connection with young person under 16]
[134(3)]
[Indecent act on young person under 16]
[135]
[Indecent assault]
[138(1)]
[Exploitative sexual connection with person with significant impairment]
[138(2)]
[Attempted exploitative sexual connection with person with significant impairment]
[138(4)]
[Exploitative indecent act with person with significant impairment]
142A
Compelling indecent act with animal
194
Assault on a child, or by a male on a female. For the purposes of this schedule, section 194 of the Crimes Act 1961 must be regarded as relating only to situations where a female sexually assaults a child under 14 years old.
201
Infecting with disease
204A
Female genital mutilation
204B
Further offences relating to female genital mutilation
Show the historical version (1 April 2002 to 20 April 2005)

Section
 
128
Sexual violation
129
Attempt to commit sexual violation
129A
Inducing sexual connection by coercion
130
Incest
131
Sexual intercourse with girl under care or protection
132
Sexual intercourse with girl under 12
133
Indecency with girl under 12
134
Sexual intercourse or indecency with girl between 12 and 16
135
Indecent assault on woman or girl
138
Sexual intercourse with severely subnormal woman or girl
139
Indecent act between woman and girl
140
Indecency with boy under 12
140A
Indecency with boy between 12 and 16
141
Indecent assault on man or boy
142
Anal intercourse

Commentary - Personal Injury in New Zealand

Synopsis
This schedule lists the offences through which a mental injury will have cover under s 21.
Cross references
s 6 “mental injury”, “ordinarily resident in New Zealand”
s 16 New Zealand
s 17 ordinarily resident in New Zealand
s 26 personal injury
s 27 mental injury
s 36 date on which person is to be regarded as suffering mental injury
s 317 proceedings for personal injury
Schedule 1 cl 55 transitional limits on eligibility for lump sum entitlements
ACSch3.01
Legislative background
This clause is based on Schedule 3 of the 1998 Act and Schedule 1 of the 1992 Act.
ACSch3.02
Mental injury as a personal injury
Normally a mental injury is not covered by the Act unless it is suffered because of physical injuries (s 26(1)(c)). An example would be depression following a broken leg which failed to heal properly.
A mental injury suffered from watching or being involved in a horrific event is not covered (unless it is work-related under s 21B) if there is no physical injury to the claimant or, even if there is physical injury to the claimant, it is clear that the mental injury comes from the horrific event and not from the physical injury. In Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 (CA), a husband saw his wife drown in a rafting accident. It was held that this was not within the definition of personal injury as the husband’s mental injury did not arise from physical injuries to him but from physical injuries to his wife. As there was no personal injury as defined in the Act the husband’s claim for damages was not barred.
However, a mental injury caused by a sexual offence in Schedule 3 is covered even if there are no physical injuries involved. All that is required is that the act performed on the victim comes within the description of an offence listed in Schedule 3.
See W v W [2001] NZAR 930 (HC) and XYZ v Accident Rehabilitation and Compensation Insurance Corporation [1994] NZAR 407 (DC) which were decided under Schedule 1 of the 1992 Act.
Schedule 3 lists all the major sex crimes such as sexual violation and indecent assault but it also includes infecting with a disease, under s 201 of the Crimes Act 1961 and female genital mutilation under ss 204A and 204B of the Crimes Act 1961.
Schedule 3 also includes s 194 of the Crimes Act 1961 which deals with assault on a child or by a male on a female. This is not a sexual crime and is the normal charge laid every day in courts for domestic violence incidents. However, the Schedule states that for the purposes of the Schedule it must be regarded as relating only to situations where a female sexually assaults a child under 14 years. At that time there was no specific sexual offence for a female sexually assaulting a child under 14 years. However, there is now the specific gender-neutral offence in s 134 of the Crimes Act which has been included in Schedule 3. The s 194 offence still remains in the Schedule even though it is clearly redundant. In JWB v Accident Rehabilitation and Compensation Insurance Corporation DC Wellington 340/99, 23 November 1999, a claim for cover under the 1992 Act failed as the appellant had been indecently assaulted by his mother and it was not until the 1998 Act that this was included by s 194.
See also Woodd v Accident Compensation Corporation DC Wellington 54/03, 2 April 2003 where the appellant had been assaulted and suffered post-traumatic stress disorder following the robbery of a pharmacy where she worked. The assaults committed by the offenders were not indecent but it was argued that her belief that the offenders might rape her would bring her within a Schedule 3 offence even though there had been no actual sexual offence committed. The argument for the appellant was that the definition of assault in s 2 of the Crimes Act 1961 was satisfied if the person making the threat has or causes the other to believe on reasonable grounds that he had present ability to effect his purpose. It was argued that even though the assaults had not been indecent the actions of the offenders in causing the victim to believe that she could be raped brought this “within the description of an offence listed in Schedule 3”. The appellant conceded that such an argument would not suffice for a criminal conviction but argued that a compensation statute should have a more liberal interpretation. Judge Cadenhead rejected the argument but as the appeal succeeded on the other grounds, the matter was not appealed further to the High Court.
ACSch3.03
Damages claims for lesser emotional trauma?
To come within the definition of mental injury a mental trauma has to be a clinically significant behavioural, cognitive, or psychological dysfunction (s 27). The ACC have taken the view that a mental injury is only satisfied by a diagnosis of a psychiatric condition referred to in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed) — DSM IV. However, the definition of mental injury in s 27 only requires a clinically significant dysfunction. It is submitted that can be met by a condition which does not meet a DSM IV category. If a scale could be envisaged from transient emotional trauma through to a recognised psychiatric condition then a clinically significant dysfunction would certainly be at the upper end of that scale but could still fall short of a DSM IV category. On the other hand, it is clear that transient emotional trauma such as feelings of anger, humiliation, fear, embarrassment, and shock will not be considered a mental injury under the Act. Accordingly, where the mental trauma does not come under the Act, the s 317 bar on suing for damages does not apply and a claim for damages may be available if there is a suitable cause of action. See further commentary on this aspect at s 27.
ACSch3.04
Mental injury caused by a Schedule 3 offence
Section 21(1) and (2) require that the mental injury be caused by an act that “is within the description of an offence listed in Schedule 3”.
There is room for debate as to what the phrase “within the description of an offence” includes. This may be important where the injured person wishes to avoid the bar in s 317 and sue the criminal for compensatory as well as exemplary damages or, alternatively, where the Corporation wishes to decline the claim. The following could be argued:
(a)
The mental injury comes from actions outside the description of the offence. In the case of an indecent assault, the mental injury may come from terrifying circumstances preceding or following the actual indecent assault.
(b)
The sexual conduct in question does not meet any of the statutory requirements for the sexual offences. An example would be, showing pornographic material as a form of sexual harassment, or sexual misconduct by a therapist or medical practitioner with a consenting yet vulnerable patient.
(c)
Where a sexual crime has a time limit (for example, s 142, anal intercourse, requires a prosecution to be commenced within 12 months), that time requirement could be said to be included “within the description of the offence”. However, it could be argued that a time limit is a procedural point and does not come within the actual description of anal intercourse. However, other requirements of the offence require the victim to be under 16 or severely subnormal and also refer to consent issues, and these would seem to be essential elements, which come more easily within the description of the offence. A court faced with this argument may draw a distinction between the essential elements in the description of the offence (for example, penetration and collateral elements such as age).
See Woodd v Accident Compensation Corporation DC Wellington 54/03, 2 April 2003, where the appellant had been assaulted and suffered post-traumatic stress disorder following the robbery of a pharmacy where she worked. The assaults committed by the offenders were not indecent, but it was argued that her belief that the offenders might rape her brought her claim within a Schedule 3 offence, even though there had been no actual sexual offence committed. It was argued that the definition of assault in s 2 of the Crimes Act 1961 was satisfied if the person making the threat has or causes the other to believe on reasonable grounds that he had present ability to effect his purpose. It was argued that even though the assaults had not been indecent the actions of the offenders in causing the victim to believe that she could be raped brought this “within the description of an offence listed in Schedule 3”. The appellant conceded that such an argument would not suffice for a criminal conviction but argued that a compensation statute should have a more liberal interpretation. Judge Cadenhead rejected the argument but as the appeal succeeded on other grounds the matter was not appealed to the High Court.
In CLM v Accident Compensation Corporation DC Wellington 110/05, 7 April 2005, the appellant’s sexual partner did not disclose he was HIV-positive. Although she did not contract the disease she did suffer a mental injury through the stress of waiting for the test results. The partner was convicted of criminal nuisance. As this was not an offence listed in Schedule 3 the Corporation declined her mental injury claim. It was argued on appeal that the actions constituting criminal nuisance could also be described as indecent assault (an offence listed in the Schedule) in that as the deadly nature of the sexual contact had been withheld, her consent to the sexual contact was not an informed consent. Judge Ongley rejected this argument. An appeal to the High Court was dismissed: CLM v Accident Compensation Corporation [2006] 3 NZLR 127 (HC). The Court concluded that the law in New Zealand did not extend to the appellant’s proposition that the non-disclosure of the HIV status of her partner vitiated consent to sexual intercourse or indecent assault. The Court considered that such a change to the law was a matter for Parliament. Leave to appeal was granted by the Court of Appeal in CLM v Accident Compensation Corporation CA160/06, 12 December 2006 on the question of whether all elements of the offences listed in the Schedule need to be established, so that the acts involved come within the description of any offence.
CLM did not proceed to a hearing in the Court of Appeal as the ACC settled the claim. However, leave to appeal to the Court of Appeal was granted in another similar case (KSB v Accident Compensation Corporation HC Wellington CIV-2009-485-78, 3 June 2010) on the same issues:
(a)
Whether failure of B’s partner to disclose his HIV status to her vitiated her consent to sexual intercourse so as to constitute sexual violation or indecent assault for purposes of cover for mental injury under s 21; and
(b)
Whether, in addition to establishing that B did not consent, it was also necessary to establish B’s partner did not believe B consented to relevant sexual connection and that he had no reasonable grounds for such belief in the case of sexual violation.
The Court of Appeal heard and reserved judgment in the case on 6 September 2011 – CA793/10. The Attorney-General had also been given leave to intervene and the Solicitor-General argued that there should be no change in the criminal law that withholding the risk of a deadly disease from one’s sexual partner did not mean that there is a lack of informed consent to sexual intercourse. This accords with Australian and English case law though the Supreme Court of Canada in R v Cuerrier [1998] 2 SCR 371 does consider that withholding the risk of a deadly disease does vitiate consent to sexual intercourse.
The arguments raised by the appellant were twofold. As to the criminal law it was argued that s 128A of the Crimes Act 1961, which sets out what does not constitute consent in sexual cases, allowed the Court of Appeal by using s 128A(8) to follow Cuerrier and declare that deliberately withholding one’s HIV status from a sexual partner meant that there was no informed consent to the sexual act and that therefore there had been a sexual violation or indecent assault committed. This would have the effect of giving the appellant cover through s 21 and Schedule 3 of the Act. Alternatively, even if the criminal law did not recognise the Cuerrier extension that a different interpretation should be applied in an accident compensation case because:
(a)
There are different policy objectives and perspectives in a criminal law case (punishment) as opposed to an accident compensation case (compensation).
(b)
The wording of s 21(1)(c) refers to an “act” which indicates that the mental elements of the offender in offences listed in Schedule 3 are not to be considered.
(c)
The wording in s 21(2)(c) also refers to the act “being within the description of an offence listed in Schedule 3” which again indicates that all the essential elements of a completed criminal offence are not required.
(d)
Finally, s 21(5) states that it is irrelevant whether anyone has been charged or convicted of the offence or is incapable of forming criminal intent.
The Court of Appeal in KSB v Accident Compensation Corporation [2012] NZCA 82, [2012] NZAR 578, (2012) 25 CRNZ 599 rejected the appellant’s argument that the wording of s 21 meant that all the claimant need establish was that harm had resulted from an act of sexual intercourse. After considering the history of the legislation and the wording the Court said:
“[29] Taking account of the wording of s 21, the limited number of offences in Schedule 3, and the overall statutory scheme, it is not conceivable that Parliament intended to provide cover for mental injury resulting from consensual sexual intercourse. This was the view reached in this Court’s leave decision in relation to CLM v ACC.
“[30] The remaining issue with respect to s 21 relates to the third element of rape, namely, the absence of reasonable belief in consent. On this aspect, we take a different view from that of Randerson J. In CLM v ACC, Randerson J concluded that all elements of the offence had to be present including the absence of a reasonable belief in consent. As this Court suggested in granting leave to appeal on this issue in CLM v ACC, policy considerations support the view cover is available whether or not there is an absence of reasonable belief in consent. The Court put the argument in this way:
‘From the complainant’s perspective non-consensual sexual connection has occurred. If the complainant suffered nervous shock as a consequence, the acquittal of the perpetrator on the ground that he had a reasonable belief that the complainant consented seems, as a matter of principle, to have little relevance to the complainant’s position. As the existence of reasonable belief on the part of the perpetrator is unlikely to reduce the complainant’s trauma it is not clear why it should be determinative of the question of cover.’ ”
“[31] The Court went on to note that it was another issue whether the language of the 2001 Act provided cover in such circumstances. We consider the 2001 Act can be read in this way given the victim focus we have discussed.…”
However, the Court did accept the appellant’s primary argument that non-disclosure of the sexual partner’s HIV status vitiated consent. Therefore, the apparent consensual sexual intercourse was in fact sexual violation and thus the appellant had cover for her mental injury as that was the result of the sexual violation, a Schedule 3 offence.
The Court of Appeal, in reaching this view, considered the position in other jurisdictions and the history of the relevant provisions in the criminal law as to whether non-disclosure meant that consent was not given because it was a mistake as to the nature and quality of the act (s 128A(7) of the Crimes Act 1961). In the end it preferred the views of the Canadian Supreme Court in R v Cuerrier. The Court said:
“[73] While the phrase ‘nature and quality’ or its equivalents have been interpreted more narrowly in other jurisdictions, we find the reasoning of McLachlin and Gonthier JJ in Cuerrier compelling. Essentially, we agree with McLachlin J that:
‘[72] ... Consent to unprotected sexual intercourse is consent to sexual congress with a certain person and to the transmission of bodily fluids from that person. Where the person represents that he or she is disease-free, and consent is given on that basis, deception on that matter goes to the very act of assault. The complainant does not consent to the transmission of diseased fluid into his or her body. This deception in a very real sense goes to the nature of the sexual act, changing it from an act that has certain natural consequences (whether pleasure, pain or pregnancy), to a potential sentence of disease or death. It differs fundamentally from deception as to the consideration that will be given for consent, like marriage, money or a fur coat, in that it relates to the physical act itself. It differs, moreover, in a profoundly serious way that merits the criminal sanction.’
“[74] In other words, we agree that unprotected sexual intercourse with a person who has not disclosed his or her HIV status changes the nature and quality of the act because of the associated risk of serious harm. We share McLachlin J’s view that:
‘[66] ... It is unrealistic, indeed shocking, to think that consent given to sex on the basis that one’s partner is HIV-free stands unaffected by blatant deception on that matter. To put it another way, if you would think the law should condone a person who has been asked whether he has HIV, lying about that fact in order to obtain consent. To say that such a person commits fraud vitiating consent, thereby rendering the contact an assault, seems right and logical’
                                                                            
“[98] Accordingly, we have concluded that in the present case where there has been unprotected sexual intercourse without disclosure as to HIV status, the appellant’s consent was vitiated by a mistake as to the nature and quality of the act (s 128A(7)). In the alternative, we would have concluded that the present case fell within s 128A(8). That would be consistent with the focus on the need for consent to be informed and the more recent legislative history.”
“Result
“[99] For these reasons, the failure of the appellant’s former partner to disclose his HIV status to her vititated her consent to sexual intercourse so as to constitute a sexual violation for the purposes of cover for mental injury under s 21 and Schedule 3 to the 2001 Act. Further, it is not necessary to establish that the appellant’s former partner did not believe that the appellant consented to the relevant sexual connection and that he had no reasonable grounds for such belief in the case of sexual violation.…”
In GS v Accident Compensation Corporation DC Wellington 145/05, 6 May 2005, the appellant had been sexually violated overseas and did not have cover under the Act. She was re-traumatised in New Zealand in 1995 through a form of attack therapy adopted by her therapist. It was submitted that this re-traumatisation by the therapist could come within the description of an offence in the Schedule but this was rejected by the Judge. However, the Judge left open the further issue that the claimant came within s 26 as suffering mental injuries in 1995 because of physical injuries, whether they occurred in New Zealand or not.
ACSch3.05
Mental injury to another from the offence
A mental injury suffered by another, for example mental injury suffered by a parent learning of the sex crime on their child, is probably intended not to come under the Act. Section 21(2) requires that the sexual crime be “performed on, with, or in relation to the person” who suffers the mental injury. The words “or in relation to” are wide enough to cover a situation where a crime is perpetrated on one person as a means of harming another. For example, sexually assaulting a child to strike at the parent would seem to be an act performed in relation to the parent who suffers the mental injury. Apart from such unusual circumstances, a parent who suffers a mental injury from the sexual abuse of a child does not come under the Act. Accordingly the bar on suing for damages in s 317 does not apply to the parent (although it does apply to the child) and a claim for damages for the mental injury may be available if there is a suitable cause of action. This could be against the wrongdoer, or the wrongdoer’s employer or an organisation responsible for supervising the wrongdoer, for example a mental institution which has negligently released a dangerous paedophile. Such damages actions, however, are difficult and often founder on policy considerations against establishing a duty of care.
ACSch3.06
Only mental injuries and sex crimes covered under s 21
In BS v Accident Rehabilitation and Compensation Insurance Corporation DC New Plymouth 72/95, 12 July 1995, a heart attack allegedly suffered through being wrongfully accused of sexual abuse was excluded as it was neither a work injury nor medical misadventure. It was also excluded as it did not come within s 8(3) of the 1992 Act (the equivalent of s 21 of the Act) as the claimant was not the primary victim of the sexual abuse but was instead wrongfully alleged to be the offender.
In LMP v Accident Compensation Corporation DC Christchurch 285/05, 28 September 2005 the appellant was admitted to a private residential psychiatric clinic. The reason for the referral was the break-up of her marriage caused by having an extramarital affair, from which she was unable to remove herself despite her claimed continued love and affection for her husband and their three year old child. After some six weeks at the psychiatric clinic the appellant disclosed that she had been a victim of rape at the age of 18 but had not confided in anyone about this event at the time. The appellant then lodged a claim for cover for a personal injury under the equivalent section to s 21 of the 1998 Act. She sought funding for her inpatient treatment at the private psychiatric clinic. The Corporation declined and this was upheld on appeal on the basis that her admission was for treatment of her psychiatric condition, which had arisen over the preceding two years, and not from the earlier sexual violation.
See also Bree v Accident Rehabilitation and Compensation Insurance Corporation DC Hamilton 115/96, 18 October 1996, in which the appellant had a heart attack after confronting a burglar on his business premises. In this circumstance cardiac arrest was not covered under s 4 of the 1992 Act (s 26 of the 2001 Act) or s 6 of the 1992 Act (s 28 of the 2001 Act).
ACSch3.07
Date mental injury suffered differs from date lump sums payable — date of treatment
Section 21(4) refers to s 36. Section 36 gives the date of first seeking treatment for that mental injury as the date the mental injury is suffered. The reference to “as that mental injury” in the section is to deal with situations where treatment may have been sought for a mental trauma but no connection has been made at that time between that trauma and the prior sexual abuse. The connection between the trauma and the sexual abuse may only come about at a later stage and it is the stage that that treatment is sought that is taken as the date the mental injury is suffered. This is an important consideration when ascertaining if someone comes under the Act or not. If the treatment for the unconnected trauma occurred before 1 April 1974 but the treatment for the trauma now connected with the sexual abuse occurs after 1 April 1974, then the claim comes under the accident compensation legislation.
In BRM v Accident Compensation Corporation DC Wellington 224/04, 6 August 2004, the appellant had suffered a mental injury from childhood sexual abuse but only sought treatment in 2001 when aged 35. Section 36 deemed his date of injury to be that date and at that age, 35 years. Accordingly he could not come within the definition of a potential earner even though the actual sexual abuse had occurred before he was aged 18. See also DMF v Accident Compensation Corporation DC Wellington 74/09, 12 May 2009, where it was decided that the date of entitlement commenced on the date the appellant started counselling with a qualified counsellor.
In MJR v Accident Compensation Corporation [2010] NZACC Dunedin 105 leave to appeal to the High Court has been given on the proper interpretation of s 36. In that case the appellant had suffered from a mental injury from sexual abuse. He had seen and been treated by a doctor for depression in 2002 but had not disclosed the sexual abuse at that time. His date of injury was therefore not taken as 2002 as he had not disclosed the abuse but at a later date when he had disclosed the abuse and was thus treated for that mental injury. The date of injury is important in many cases for the purposes of linking the injury to a time when the claimant was in employment or a potential earner under 18 so weekly compensation can be claimed.
This has become increasingly important now that the High Court in Accident Compensation Corporation v Vandy [2011] 2 NZLR 131 (HC) has confirmed the interpretation of s 103 that to receive weekly compensation the injured person must be an earner at the time of the injury. Obviously any child who has been sexually abused cannot fit within this as they are invariably not an earner at the time of injury.
Section 36(1) may assist in some cases if the date of treatment for the abuse is taken as the date of injury and the claimant is an earner at that time. However, there are many cases where the claimant is not an earner at that later time of treatment either.
The only recourse to weekly compensation for such sexual abuse victims is through loss of potential earnings under s 105 of the Act. However, there again, a claimant finds that they do not come within the definition of potential earner as their injury date is taken not when the actual sexual abuse occurred but when the treatment was sought. Thus in the case of BRM (above) the claimant's injury date was taken as occurring at age 35 even though it was clear he had been sexually abused as a child in terms of the “potential earner” definition in s 6(1) of the Act.
Unfortunately the MJR case like BRM was also settled by the ACC before a hearing in the High Court. Thus the law remains as found by the District Court with the resultant unjust dilemma for childhood sexual abuse victims.
It is submitted, with respect, that there are valid arguments for a different approach. These are:
(a)
That for the purposes of qualification as a potential earner to allow assessment of incapacity under s 105 the s 6 definition should be paramount as it reflects reality if the abuse happened before age 18. The s 36 definition at the most only applies to limit the date entitlements are to be paid from.
(b)
That s 36 is capable of being interpreted in a more expansive manner than that adopted by the ACC. In particular the meaning of the date of treatment for that mental injury as a mental injury could be extended to include any treatment for a mental condition even though not expressed to be for the sexual abuse (which was the factual situation in MJR (above)).
(c)
In the case of Bryant v Attorney-General HC Wellington CP44/00, 7 August 2000 it was held that the “date of treatment” provision in the legislation was for administrative convenience only and did not override the actual date of injury.
(d)
That an alternative argument can also be advanced in that a claimant who suffers sexual abuse as a child also suffers a physical injury through an invasion of bodily integrity and can obtain cover for the mental injury under s 26(1)(c) as being suffered because of those physical injuries. The relevant provision for the date of injury is then s 36(2) which gives the date of the mental injury as the date the physical injuries are suffered. Accordingly, the claimant would be considered to be a potential earner and thus be able to claim weekly compensation based on loss of potential earnings.
In X v Accident Compensation Corporation DC Dunedin 163/09, 29 September 2009, the issue was the date on which the appellant was deemed to have suffered mental injury. He had joined the prison service in 2000 but while employed began to suffer from depression. In October 2002, the first record of depression was noted in his GP’s medical records. The doctor’s opinion was that the appellant’s mental condition was caused by the stress of working in the prison environment. He resigned from his employment in June 2003 consequent upon his deteriorating mental condition and that was the date that was argued to be the date of his incapacity. He then took part-time employment. In the latter part of 2003, he commenced receiving counselling and therapy. He developed a rapport with the doctor who was providing counselling, but it was not until August 2004 that he first disclosed to that doctor the occasions of sexual abuse that he had suffered at the age of seven. The doctor assisted him with lodging a claim for cover for mental injury arising from the sexual abuse being a Schedule 3 crime. In dismissing the appeal the Court followed the decision of the High Court in A v Roman Catholic Archdiocese of Wellington [2007] 1 NZLR 536 (HC). The Court said that s 36(1) is specific to mental injury suffered as a consequence of a Schedule 3 crime and found that it was implicit in the word “treatment” in s 36 that it is treatment for the mental injury suffered as a consequence of a sexual crime. The implication requires that the health professional treating the claimant has knowledge of the nature and the cause of the mental injury he/she is being asked to treat. When treating the appellant in 2002, the GP was not aware of the sexual abuse and treated him for depression and not the sexual abuse.

From OSH Legislation

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