CLM V ACCIDENT COMPENSATION CORPORATION CA CA160/06

CLM V ACCIDENT COMPENSATION CORPORATION CA CA160/06 12 December 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA160/06BETWEEN CLM Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 4 December 2006 Court: William Young P, Glazebrook and Arnold JJ Counsel: J Miller for Applicant A Barnett for Respondent Judgment: 12 December 2006 at 2.45 pmJUDGMENT OF THE COURT A Leave to appeal in respect of the question identified at [6][a] of this judgment is declined. B Leave to appeal in respect of the question identified at [6][b] of this judgment is reserved for argument at the hearing of the appeal on the question for which the High Court has already granted leave. REASONS OF THE COURT(Given by Arnold J)[1] The applicant sought compensation from the respondent for mental or nervous shock which she suffered after she learnt that her partner, with whom she had had unprotected sex, was HIV positive. He had concealed that fact from her during their relationship. Although the applicant did not become infected, she was emotionally traumatised by the experience. [2] The applicant's partner was convicted of criminal nuisance for failing to disclose that he was HIV positive (s 145 of the Crimes Act 1961). [3] The applicant sought compensation from the respondent for nervous shock arising from this experience. The respondent refused cover, on the ground that s 145 of the Crimes Act was not one of the offences referred to in s 8(3) and Schedule 1 of the Accident Rehabilitation and Compensation Insurance Act 1992. [4] At the time that the applicant submitted her claim (June 1999) s 8(3) and (4) provided:(3) Cover under this Act shall also extend to personal injury which is mental or nervous shock suffered by a person as an outcome of any act of any other person performed on, with, or in relation to the first person (but not on, with, or in relation to any other person), being – (a) An act that is within the description of any offence listed in the First Schedule to this Act; and (b) . (4) For the purposes of subsection (3) of this section, it is irrelevant that – (a) No person can be or has been charged with or convicted of the offence; or (b) The alleged offender is incapable of forming criminal intent.Schedule 1 of the Act sets out a number of sexual offences from the Crimes Act and one from the Mental Health Act 1969. It does not refer to s 145 of the Crimes Act, however.[5] The applicant appealed to the District Court. Judge Ongley upheld the respondent's decision. The applicant then sought, and was granted, leave to appeal to the High Court. In granting leave Judge Cadenhead said:[16] I am of the view that there are appropriate questions of law to be decided in this appeal. (1) A question is whether the wording of s 8(3)(a) of the 1992 Act is met by the actions of the appellant's sexual partner in failing to disclose that he was HIV infected at the time of sexual intercourse. (2) Whether consent to sexual intercourse or a sexual touching is vitiated by the sexual partner withholding the information that he was HIV infected for the purposes of this legislation. (3) Despite the clear and penetrating analysis of Judge Ongley along conventional criminal lines concerning the issue of consent, whether a broader approach should be taken in interpreting a "no fault" compensation statute. [17] For the reasons that I have given, I am of the view that these are questions of law to be properly determined by the High Court, and I grant leave accordingly.[6] Randerson J heard the appeal. He dismissed it: CIV 2005-485-000893, 12 May 2006. The applicant then sought leave from the High Court to appeal to this Court in relation to three questions:[a] Does the wording of s 8(3) and the First Schedule [of the 1992 Act] include any criminal offence of a sexual nature and if so is the offence of criminal nuisance in this case, which had a sexual component so included? [b] If cover is restricted to the specified criminal offences listed in the First Schedule does the wording in s 8(3) and (4) mean that not all the elements of those criminal offences need be established so that the acts involved in this case come within the description of any of those offences? [c] If cover is restricted to the specific offences listed in the schedule is the action of the offender in withholding his HIV status from the claimant sexual violation or indecent assault?[7] Randerson J granted leave to appeal in respect of an expanded version of the question identified at [6][c] above:Whether the failure of the appellant's partner to disclose his HIV status to the appellant is capable of vitiating her consent to sexual intercourse so as toconstitute a sexual violation or indecent assault for the purposes of cover for mental or nervous shock under s 8 and the First Schedule of the Accident Rehabilitation and Compensation Insurance Act 1992.[8] The applicant now seeks special leave from this Court to appeal in respect of the questions identified at [6][a] and [b] above. [9] In respect of the question in [6][a] we agree with Randerson J that there is no fairly arguable issue. We consider that the language of s 8(3) is clear beyond argument. At the hearing, Mr Miller frankly acknowledged the difficulties which he faced in this respect. Accordingly we decline to grant leave on that question. [10] As to the question in [6][b], the position is more difficult. As worded, the question is clearly too wide. For example, it would cover situations involving consensual sexual connection. The ingredients which change lawful sexual connection into unlawful sexual violation are the absence of consent and the absence of reasonable belief in consent. If, as the question suggests, not all of the ingredients of the offence have to be present to obtain cover for nervous shock under s 8(3), it would be sufficient if consensual sexual connection occurred and produced nervous shock. We consider it inconceivable that Parliament intended to provide cover in such circumstances through s 8(3). [11] However, although the question as framed is too wide, it does contain a point of substance. For example, in a case where there has been sexual connection without consent, but the accused is acquitted on the ground that he had a reasonable belief that there was consent, there may be a strong policy argument for cover under s 8(3). 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. Whether the language of the Act does provide cover in such circumstances is, of course, another matter.[12] In these circumstances, we are not prepared to grant leave on the question in [6][b] as it is currently formulated. Rather, we will reserve the position, so that the applicant can argue for the grant of leave in respect of an appropriately worded question in conjunction with the argument on the question for which she was granted leave by the High Court.Decision[13] Leave to appeal on the question identified in [6][a] of this judgment is declined. The question of leave to appeal on the question identified in [6][b] of this judgment is reserved to be heard in conjunction with the appeal on the question on which the High Court has already granted leave. [14] We also direct the Registrar to send a copy of this judgment to the Solicitor-General and to the Presidents of the New Zealand Law Society (for the attention of the Criminal Law Committee) and the Criminal Bar Association so that they can consider whether the matter raises any issue on which they wish to be heard.Solicitors: John Miller Law, Wellington for Applicant Accident Compensation Corporation, Wellington