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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

C v Accident Compensation Corporation (DC, 13/08/14)

Judgment Text

Judgment of Judge J A Smith 
The appeal is withdrawn. Without prejudice in the event that further information comes to light establishing an earlier date of injury there is no application for costs. 
Judge J A Smith
This is an appeal in relation to a sensitive claim and involves the question of loss of potential evidence. The claimant C didn't present with the claim until 2005. The first day he appears to have presented for medical treatment was when he was admitted for psychiatric assistance in 1998. 
The sexual abuse, the core of this claim, is alleged to have occurred in the period up to 1978 at various times. Accordingly there was a gap of some 20 years between the last known sexual abuse and the first presentation however that presentation was not on the basis of sexual abuse but for schizophrenia. 
Mr Miller acknowledges there are significant difficulties with the loss of earning claim given the recent decisions in Vandy and also that in Murray. Murray did leave open the possibility that in cases where the person presented at an earlier stage which in retrospect could be seen as related to the sexual abuse, that date might be appropriate. 
I gather in this case that date best it could be claimed is 1998 and that date is unhelpful. Investigations have been undertaken to see if there is an earlier date but Mr Miller is in some particular difficulty as his client is a special patient and unable to plead or give clear instructions. 
This has meant that he has relied on secondary sources to find information which might assist. He admits that to date no indication has been given that there is an earlier date on which he had treatment and on this basis he has discussed with Mr Barnett the disposition of this appeal and both parties agree that this appeal should be withdrawn but without prejudice in the event that some evidence can be produced showing an earlier date or of course there is a change to the existing law through the appeals process currently being undertaken. 
I point out that my understanding is that the claim's process before the Corporation was never closed in that sense in any event and if evidence does come to light it could be produced to support a claim. 
Neither parties seek costs and the matter is withdrawn on the basis that there is no order for costs. 

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