JWB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 340 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JWB Appellant (Appeal No. DCA 149/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE M J BEATTIE ON THE PAPERS The Court has been requested by the appellant and counsel for the respondent to issue a decision on the papers in this appeal. The issue for determination in this appeal is whether the appellant is entitled to cover under the Act in respect of the mental effects caused as a consequence of him being indecently assaulted by his mother when he was a child between the ages of 9 and 13 years. The facts which are relevant to the determination of this issue are as follows: The appellant is now an adult and in 1996 he made a claim for cover under the Act in respect of the mental consequences which he was by then suffering which he said 2 stemmed from a period of some four years or so between the ages of 9 and 13 when he was subjected to certain indecencies by his mother some of which would broadly come under the criminal conduct of indecent assault. The respondent granted cover to the appellant after receiving a detailed report from the appellant's counsellor and the appellant thereafter received certain entitlements including costs of counselling. In November 1998 the respondent reviewed its file and sought a legal opinion as to whether the appellant was entitled to cover pursuant to the provisions of s.8(3) of the Act, that is for personal injury that is mental shock suffered by him as the outcome of any act of another person performed on him, being an act which is within the description of any offence listed in the First Schedule to the Act. The First Schedule to the Act sets out certain sections of the Crimes Act 1961 and included in the sections to which s.8(3) applies are ss. 140 and 140A, being respectively, indecency with a boy under 12 and indecency with a boy between 12 and 16. It seems that the respondent's officers who had initially dealt with the appellant's claim for cover had not gone past the descriptive titles of those two sections to look at the content of them and simply accepted that the nature of the conduct claimed by the appellant came within either or both of those sections. In fact those sections each require the person committing the offence to be a male and when this fact was realised the respondent did by letter advise the appellant that he was no longer entitled to cover. It is that decision which the appellant initially had reviewed and the review was unsuccessful and he has thereupon appealed to this Court. It is the appellant's submission that there should be no difference between the circumstances of a young boy being indecently assaulted by either a male or female and that in so doing it is discriminating against young males in his situation on the 3 basis of gender. He submitted that such a state of affairs must be contrary to the Human Rights Act. Mr Richards, counsel for the respondent, in written submissions submitted that the alleged abuse by the appellant's mother did not come within the definition of any of the provisions of the Crimes Act referred to in the First Schedule of the Act and therefore the respondent's decision to revoke cover was correct. Relevant Statutory Provisions Section 8(3) reads: "(3) Cover under this Act shall also extend to personal injury that 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) An act that was performed in New Zealand, or outside New Zealand where the person on, with, or in relation to whom the act was performed was ordinarily resident in New Zealand when the act was actually performed (even if the person is ordinarily resident in New Zealand on the date on which the personal injury is deemed to have been suffered)." The First Schedule makes the following provisions for the acts referred to in s.8(3) as follows: 'CRIMES ACT 1961 Section 128 . .. Sexual violation 129 ... Attempt to commit sexual violation 4 129A... Inducing sexual connection by coercion 130 ... Incest 131 ... Sexual intercourse with girl under care and 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 by 142 ... Anal intercourse 142A... Compelling indecent act with animal 201 ... Infecting with disease MENTAL HEALTH ACT 1969 113 ... Sexual intercourse with mentally disordered female." Sections 140 and 140A of the Crimes Act 1961 provide: "[140. INDECENCY WITH BOY UNDER 12- (1) Every one is liable to imprisonment for a term not exceeding 10 years who, being a male, -- (a) Indecently assaults any boy under the age of 12 years; or (b) Does any indecent act with or upon any boy under the age of 12 years; or "[140A. INDECENCY WITH BOY BETWEEN 12 AND 16- 5 (1) Every one is liable to imprisonment for a term not exceeding 7 years who, being a male, -- (a) Indecently assaults any boy of or over the age of 12 years and under the age of 16 years; or (b) Does any indecent act with or upon any such boy; or ..." Decision The evidence provided to the respondent by the appellant's counsellor makes it clear that the only acts of his mother which could be the subject of criminal charges would have been those of indecent assault on him at the particular age that he was at the time of those assaults, some being when he was under 12 and some when he was between 12 and 16 years. The accident compensation scheme is a statutory regime where the Accident Rehabilitation and Compensation Insurance Act constitutes a code and the right to cover and/or entitlements only arises if a claimant can bring him/herself within the provisions of the Act. In s.8(3) of the Act it only recognises personal injury that is mental or nervous shock which involves acts of a sexual or indecent nature which are in fact certain crimes under the Crimes Act 1961. The First Schedule to the ARCI Act has limited itself to specified crimes rather than gender neutral acts which may or may not be criminal conduct. In the appellant's case the person who committed the alleged offences was not a male and as such no offences had been committed under the Crimes Act of the type or nature that are recognised in the First Schedule as being of the type which might cause mental or nervous shock to a person upon whom any such act was perpetrated. It is to be noted that not all acts of assault can be the subject of a claim for mental or nervous shock under s.8(3) but only certain specified acts of behaviour. 6 It is to be further noted that under the Accident Insurance Act 1998, which is the successor of the ARCI Act which was in force at the time the appellant's claim was considered, has restated the same provisions of the Crimes Act 1961 with one addition being s. 194 of the Crimes Act which is the offence of assault on a child under the age of 14 years and which is gender neutral. However that provision was not in force at the time the respondent made its decision and for the reasons given I rule as a matter of law that the respondent was correct to determine that the appellant was not entitled to cover under s.8(3) of the Act because the person who allegedly committed the acts which caused the mental shock suffered by the appellant, had not committed any offence against the Crimes Act 1961 as set out in the First Schedule to the Act. For the foregoing reasons therefore this appeal must be dismissed. Because of the sensitive nature of this claim I find that it is appropriate to protect the privacy of the appellant and there is accordingly an order pursuant to s.96 of the Act forbidding the publication of the name of the appellant or of any details likely to lead to his identification. For the purposes of reference the case may be referred to by the initials of the appellant, being JWB v ARCIC. DATED at WELLINGTON this 23" day of November 1999 M J Beattie District Court Judge DCA149-99.doc(J9)