M v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 319/2003 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN M of Christchurch - Appellant (Appeal No. AI 389/03) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on 18 November 2003 APPEARANCES/COUNSEL J. Miller and S. Thistoll for appellant A.D. Barnett for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this case is whether or not a letter dated 13 April 2003, written by the respondent to the appellant, was a decision that gave the appellant rights of review, or whether that letter was merely the reconsideration of an earlier decision of https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2003/319- 2003.doc AE the respondent, dated 12 August 1999, which had earlier declined a claim of the appellant. Suppression Order [2] I have suppressed the name and identity of the appellant in this case by consent of both parties. Narrative of Facts [3] The appellant had a relationship with a partner who had an HIV condition. The relationship lasted from between the months of 1995 to April 1996. The appellant’s age was 24 years and her partner was 30. He was aware of his disease, but did not inform the appellant. [4] She did not become infected by the disease, but it is alleged as a result of the sexual activity, and the knowledge that she acquired she developed a post traumatic stress disorder. [5] The appellant did not lay a complaint with the police against her partner until 1999. He was charged with an offence of criminal nuisance pursuant to s.145 of the Crimes Act 1961. He was convicted and eventually sentenced to a term of imprisonment. [6] The appellant made a claim with the respondent, and a decision dated 12 August 1999 was issued by the respondent declining the claim. I set out hereunder the relevant extracts from that decision: “Kia Ora C M “I have recently received the cover report in support of the above claim. It is clear that the events and their consequences have been distressing. Unfortunately, the abuse described is not covered by the First Schedule to the Accident Rehabilitation and Compensation Insurance Act 1992. There is no cover under the Act and I am therefore obliged to decline the claim. If you are not satisfied with this decision, you may ask for a review at any time within three months of the date of this letter. The request should be made in writing, using an ARC33 (Application for Review). This form is available from any ACC office. 319-2003 2 If you have any queries please contact me at the Sensitive Claims Unit on (04) 918 3790 or 0800 735 566.” [7] The appellant took legal advice, and on 20 February 2003, through her counsel, she made a claim. I set out hereunder the relevant extracts of that claim: “We represent Miss M in her application to have cover granted for her mental injury she has suffered as the result of having sexual intercourse with her partner, only finding out later that he had the HIV virus which he had failed to tell her at the time. Miss M had her claim rejected on 12 August 1999. We ask that you consider this claim for cover under the following section. Our client clearly has a mental injury which should be covered under the Act. Although there were no physical injuries (she has not contracted the HIV virus) she has suffered significant mental trauma. As such she should attract cover under S.8(3) of the 1992 Act as a mental injury caused by a criminal act. "(3) Cover under this Act shall also extend to a personal injury which is mental or nervous shock suffered by a person as an outcome of any act or any other performed on, with, or in relation to the first person (but not on, with, to any other person) which is within the description of any offence listed in the First Schedule to this Act. (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." Cover is given if her mental injury is an outcome of any act this man may have performed with or in relation to her which is within the description of any offence listed in the First Schedule. Under the First Schedule the crime of "indecent assault on woman or girl" under section 135 of the Crimes Act 1961 is defined as: "everyone is liable to imprisonment for a term not exceeding 7 years who - (a) indecently assaults any woman or girl of or over the age of 16 years; or (b) does anything to any woman or girl of or over the age of 16 years, with her consent, which but for such consent would have been an indecent assault, such consent being obtained by a false and fraudulent representation as to the nature and quality of the act." It is clear that the current case satisfies this crime description. Clearly the client gave her consent to sexual intercourse. She would not have given such consent had she not been falsely and fraudulently led to believe that it was safe to have unprotected sex with the man. Clearly it was not safe to have sexual intercourse with him, him being in the knowledge that he had the HIV virus. The fact that she did not become infected is irrelevant in this scenario. He gained her consent fraudulently and therefore by having sexual intercourse with her he was committing an indecent assault. It is irrelevant that he has not been charged with this offence in a criminal court. 319-2003 3 This section does not require exact compliance or proof of all the elements of an offence to a standard beyond reasonable doubt as a criminal court would require. The words are clearly to be interpreted in the context of a compensation statute and as they clearly do not exclude our client she should be included. We therefore request that our client have her claim for cover accepted and the relevant entitlements be paid." [8] The respondent replied on 28 February 2003 acknowledging the claim, in particular the respondent wrote: “ACC is also in receipt of your letter dated 20 February 2003 and the request for Ms M’s cover to be considered. This request regarding cover is being looked into and I will contact you with a decision as soon as possible.” [9] On 30 April 2003, the respondent advised the decision that it had made in August 1999 still stood, that is, cover for the events described were still declined. [10] The respondent was regarding the later claim as a request to revise its decision, and as such if this was a revision of the earlier claim, no review rights would attach. I set out hereunder the relevant extracts from the reply of the respondent dated 30 April 2003: "In response to your letter dated 20 Feb 03 asking ACC reconsider its decline decision in relation to the above claim. ACC has looked into this matter and has found that the decision made in August 1999 still stands, that is, cover for the events described are still declined. This is because under Section 135 the claimant must prove that her consent has been obtained by a "false and fraudulent representation as to the nature and quality of the act". Although it is unlikely that the claimant would have engaged in unprotected sexual relations had she known that her partner was HIV positive, there is no evidence to support the assertion that the claimant's partner lied about his health status in order to induce her to engage in sexual relations. Accordingly, this claim does not fit within section 135 of the Crimes Act, and therefore ACC should not revise its decision to decline this claim. ACC issued a decision on 12 August 1999 declining the claim for cover, and advised the claimant of her right to review the decision. It appears that a review was never lodged. I trust that this letter clarifies the situation in relation to this claim. If Ms M is seeking counselling in relation to any other sensitive claim, please advise her to contact a local ACC counsellor who may be able to assist her. Alternatively, she may contact me at the details below." [11] The respondent, fairly, does not seek to rely upon the general limitation period of one year contained under the relevant legislation. 319-2003 4 Background to the Original Claim [12] A claim form was completed by the appellant dated 12 June 1999. The date of the accident was shown as between 1995/1996. No details are given of the claim on the claim form. It does appear that in sensitive ACC claims, there is no requirement on the claimant to fill in a claim form or questionnaire – the information provided in the cover report fulfils this purpose. [13] The Sensitive Claims Unit cover report is dated 30 June 1999. Some of the more material factors in that report I list as: • The appellant was in a sexual relationship with an HIV infected male partner for a period of four and a half months. From December 1995 to April 1996. He was the client’s partner. His age at that time was 32 and her age was 24. The infection resulted as a result of daily intercourse. • In answer to a question “Are you of the opinion that a crime has been perpetuated against this client as defined in the First Schedule of the ARCIC Act 1992” there is a tick which says “yes probably (unsure at present, could be s.201 Crimes Act 1961 perpetrator is being charged under s.145 of the Crimes Act)”. • The claim form summarises the consequences of the abuse as being that the appellant was in a normal sexual relationship with the perpetrator. They had been friends prior to sexual relations commencing. The sexual relationship ceased when the client found out that her partner was HIV positive. She had been engaging in unprotected sexual relations up to cessation of the sexual relationship. • The current consequences of the abuse was detailed as being that the appellant became very withdrawn, and had panic attacks when venturing outside. She had become extremely stressed/anxious/depressed, and was manifesting symptoms of post traumatic stress disorder. She was exhibiting avoidant behaviour as described. 319-2003 5 • It was recommended that the appellant needed assistance to deal with her quite severe post traumatic stress disorder symptoms. There might well be a defended Court hearing in this matter in the future. [14] There was an accompanying consultant clinical psychologist’s report from Dr Watson dated 30 June 1999. [15] In that report he was of the view that the appellant was currently suffering from symptoms of post traumatic stress disorder. This disorder incorporated serious re-experiencing, avoidant and increased arousal problems as a result of her traumatic experiences. The doctor said she subsequently found out that her former male partner was HIV positive, and that this was during the time of her relationship with him. They had been having unprotected sex. He considered that financial assistance should be provided in order that she undertake the counselling she needed. The Review Decision [16] The review decision was dated 5 August 2003. The reviewer came to the view that the respondent’s letter of 30 April 2003 amounted to a re-assertion of the status quo, and could not amount to a fresh decision which carried with it review rights. [17] The reviewer was of the view that while s.135 of the Crimes Act 1961 might have applied to these facts, the fact that that section was not referred to did not end the matter, as the abuse suffered by the appellant was clearly set out in the cover report for the respondent to consider. [18] In its decision letter to the appellant it stated that the abuse described is not covered by the First Schedule. The respondent did not state, nor is it clear from the file, which of the offences listed in the First Schedule it had considered, but it was entirely possible that s.135 was considered at that time. [19] The reviewer said: “In essence ACC have in both letters set out his reasons for declining the claim and that the abuse described is not covered by the First Schedule.” 319-2003 6 Legal Principles [20] I have read the decisions of Richardson v ACC (24 April 2001), District Court, Rotorua, 96/01, Beattie DCJ; Hole v ARCIC (1 December 1977), District Court, Christchurch, 249/97, Beattie DCJ; Wanrooy v ACC (18 September 2000), District Court, Wellington, 246/00, Middleton DCJ; Taylor v ARCIC (29 September 1998), District Court, Christchurch, (212/98), Beattie DCJ and Ferguson v ARCIC (2 May 2000), District Court, Wellington, 84/200, Barber DCJ, and it seems to me at the heart of these decisions are what are the characteristics of a decision made by the Accident Compensation Corporation which attract rights of review, and the scope of the doctrine of issue estoppel. [21] It is clear that the legislation contemplates a decision that may be reviewed within three months, and that review hearing giving a right of appeal to the District Court, again within a specified period of time, and then a final appeal to the High Court on a point of law. [22] The fundamentals of a decision are that a particular issue is decided, and that issue is conclusive subject to the right of a review within the three month period of time. This, as it were, is a statutory form of issue estoppel. Guidance can be had from considering how the law concerning issue estoppel is developed. Issue estoppel is concerned with the prior resolution of issues and precludes a party from contending the contrary of any precise point which, has once been distinctly put in issue and been determined against the other party. [23] The underlying principles upon which the doctrine is based is the balance between the finality of litigation as a principle on the one hand, and individual justice on the other. [24] In Arnold v National Westminster Bank Appeal C [1991] 2 OC 93 Lord Keith at p.104 noted that issue estoppel or res judicata might not apply in its full rigour, where the earlier decision did not in terms decide, because they were not raised, points which might have been vital to the existence or non-existence of the cause of action. [25] In Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 the interlocutory nature of proceedings, or the lack of precision concerning the actual issue decided, 319-2003 7 might make it reasonable to disregard the earlier decision as a final determination of the issue which one of the parties later wishes to raise. [26] I refer to Phipson on Evidence, 15th edn, paragraph 38-32 where it is stated that a wide range of materials can be looked at to determine what was necessarily decided in a previous decision. In that respect, the House of Lords has emphasised the danger of looking too carefully for estoppels based on matters which were not in issue, or not fully argued and decided. The cautious approach of the House of Lords has since been accepted in Spens v IRC [1970] 3 All ER 295 where Megarry J said that one must enquire with unrelenting severity whether the determination on which it is sought to found estoppel is so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. The test was, was the issue raised necessarily determined by a previous decision. [27] It is clear from the authorities that if there is ambiguity or uncertainty as to what was decided by the previous decision, then a party is not precluded from raising that issue. It is upon the party alleging the previous decision, or concluded issue, to prove that what is subsequently raised falls within the parameters of the earlier decision or issue. [28] Pursuant to s.72 (a) and (b) of the Accident Insurance Act 1998 the insurer must give written notice of its decision, which must contain the reasons for the decision. The notice must then go and generally explain the rights of review. Clearly the scope of the reasons given in the notice will indicate the parameters of the scope of the decision. Decision [29] The notice dated 12 August 1999 states that the events and their consequences were distressing and that the abuse described was not covered by the First Schedule to the First Schedule to the Accident Rehabilitation and Compensation Act 1992. For that reason there was no cover under the Act and the claim was declined. In its decision of 30 April 2003 the respondent provided more detailed reasons and said that section 135 of the Crimes Act 1961 did not apply because the claimant had to prove that her consent had been obtained by a false and fraudulent representation. After briefly considering a brief factual situation the respondent did not feel that the facts fell within section 135 of the Crimes Act and would not revise its earlier decision. 319-2003 8 [30] I accept that on one interpretation of the letter of 12 August 1999 it is possible to hold that a decision was made specifically on the application of section 135 to the facts of the case. However, the background of the claim was the bringing of a prosecution pursuant to s.145 of the Crimes Act, which was not a scheduled offence. Again, if brief specific reasons had been given to the appellant, such as given in the notice of the 30 April 2003, as to why s.135 did not apply to the facts of her case, clearly the appellant would not be able to seek a fresh decision. [31] I am of the view that the notice of 12 August 1999 did not give sufficient reasons to enable the appellant to fully consider her review rights. I hold that there is at least an evidential onus upon the respondent to satisfy the Court that the appellant was specifically and clearly advised for the reasons declining her claim. Having regard to the factual background the reasons were ambiguous and vague. The Court should not be too ready to look for what, are in effect, statutory estoppels. Each notice should be tailored to the factual complexities of the issue decided. In some cases very simple reasons will suffice, in other cases the circumstances and the reasons provide the guide as to the scope of the decision. It is important this is so, as there are no formal pleadings against which to measure the issues. [32] Both counsel sensibly agreed the issue of whether in fact there was a sufficient factual content here to bring the claim within the parameters of s.135 of the Crimes Act did not fall to be decided by me. Rather that issue would be the subject of a review hearing, when all the facts and legal aspects of the issue would be explored. [33] I would finally like to thank both counsel for the helpful submissions both oral and written that I received. In particular the submissions of Mr Barnett have caused me to anxiously consider the reasons for my decision, when considering the application of the legal principles to the factual content of the notices of decision. [34] For the reasons that I have given I allow the appeal. The matter should be referred to a review hearing to decide the merits of the claim. I allow costs to the appellant of $800. DATED at AUCKLAND this ……8th……. day of ………December…..….. 2004 (J. Cadenhead) District Court Judge 319-2003 9