Woman battered as a baby, by birth mother, successfully receives cover for her mental injury (2018)

Justice David Collins says the District Court needs to reconsider the woman’s case because a legal error was made the first time.

Soon after she was born, the appellant was seriously assaulted and injured by her birth mother. The appellant’s physical injuries were treated and the appellant healed. However, when the appellant was five years old, her adoptive parents told her about the injuries her birth mother had inflicted. From that point onwards, the appellant suffered a pain disorder and developed a number of psychological conditions, which fell within the definition of “mental injury” in s 27 of the Accident Compensation Act 2001 (the Act).

The ACC declined cover for the appellant’s mental injuries on the basis that they were not caused directly by her physical injuries. Instead they were caused by the appellant learning of her injuries and the circumstances in which they were inflicted. This decision was upheld in the District Court.

At the High Court, it was submitted on behalf of the appellant (inter alia) that there was no requirement for direct causation, which had not been drafted into the legislation. It was also submitted that strong policy considerations supported broad mental injury cover, operating in a sensible way.  After all, the appellant shouldn’t have been denied cover because her foster parents were transparent about the injuries she sustained as a baby!

The High Court found that the appellant need not establish direct causal link between her physical injuries and mental injuries in order to qualify for cover under s 26(1)(c) of the Act.  Instead,  the Court held that s 26(1)(c) will require that the claimant’s physical injuries are both a factual and legal cause of his or her mental injuries. These requirements will be satisfied when two tests are met. First (and subject to possible exceptions), the “but for” test must be satisfied. Second, the physical injury must “materially contribute” to the claimant’s mental injury. Material contribution means the physical injury must be the cause of the mental injury in some genuine or meaningful way, rather than in just a trivial or minor way.  The High Court noted that the District Court had erred in law in not applying the appropriate legal test of causation, and it was directed that the appellant’s case be remitted back to District Court for rehearing.

Represented by JOHN MILLER LAW

https://www.stuff.co.nz/national/crime/103907609/former-battered-baby-to-get-second-acc-claim-hearing

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