TCA v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT AT AUCKLAND Decision No. 213 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN TCA DCA 154/96 Appellant AND ACCIDENT REHABILIATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 30th day of September 1997 NAME OF APPELLANT NOT TO BE PUBLISHED APPEARANCES Miss NS Tabb for appellant Mr MG Colson for respondent DECISION OF JUDGE M J BEATTIE Because of the sensitive nature of this appeal I make an order forbidding publication of the name, address or occupation of the appellant or of any 2 particulars likely to lead to the identification of the appellant, such order being made under section 96 of the Act. The issue in this appeal is whether the appellant has cover under the Accident Compensation Act 1982 for multiple sexual abuse claims or whether such cover is under the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant is now aged 28 years having been born on 29 July 1969. On a claim form dated 7 August 1992 the appellant lodged a claim for cover and treatment expenses alleging "From October 1980 to April 1981 sexually assaulted by family friend aged 57, I told mother and she took me to a doctor." "The date of injury" box on the claim form stated it to be "1980-1981". At the time of making this claim the appellant made an election to claim lump sum compensation, that election being also dated 7 August 1992. In a consent form dated 12 September 1992 she authorised her medical practitioner to provide information to the Corporation and in that form she stated, "emotional problems, loss of sexual enjoyment, genital herpes, drug abuse, bulimia, fear of male health professionals, irrational anger and depression caused (by) a year of indecent assaults and 432 months of rape by a 57 year old when I was 11." On 23 September 1992 the Corporation wrote to Lorna Mckay of Equinox Consultants seeking a medical report, Ms Mckay being the person who had been counselling the appellant. 3 A full report was furnished by Ms Mckay in March 1993 and attached to that report was a copy of the statement that the appellant had made to the police in June 1992. On 19 March 1993 the Corporation advised the appellant that it was awarding compensation to her of $10,000 under section 79 of the 1982 Act - it being the maximum sum payable under that section but that no award was being made under section 78 as it assessed there was nil permanent physical injury . On 31 March 1993 the appellant sought to have the Corporation's decision reviewed and the reasons stated were: "The sum of $10,000 is not sufficient to compensate me for my emotional damage injuries and insufficient account has been taken of the fact that I was multiply abused, the length of time over which I was abused and its effect on me . " The Corporation then invited the appellant to lodge separate claims for the multiple sexual abuse and after considering the matter the Corporation declined to consider further the question of separate claims. In its letter of 26 June 1995 it said: "unfortunately ACC does not have sufficient information regarding separate events and effects, above what has already been compensated under Claim A 1808697.002 to consider acceptance. Should our decision be overturned at review, entitlement to lump sum compensation could then be considered - this would involve identifying separate events and effects of the abuse, and when these events and effects were first identified by a Counsellor. If the events/effects were identified after 4 1 October 1992, then your claim could only be considered under the 1992 Act. Under the 1992 Act there is no provision for lump sum compensation". That decision was reviewed on 26 September 1995 at which hearing the appellant identified various incidents amongst the abuse she had received that she wished to have considered as separate claims. There were three such claims. Following the hearing the Review Officer wrote to the appellant's Counsellor Ms Mckay to determine when the separate effects of these incidents were first identified. After considering Ms Mckay's reply the Review Officer upheld the Corporation's decision. In her decision the Review Officer held that there was a specific procedure laid down by the Accident Compensation Appeal Authority which the Corporation must follow when dealing with claims of multiple abuse, that procedure having been set down by the Appeal Authority in the decision of I (195/ 95). Where a claimant indicates a desire to turn a single claim into multiple claims, the procedure to be followed is: 1. The Corporation will reply to the claimant and request separate M46's for each incident advising that further information will be sought from their counsellor. 2. Claimant's counsellor is asked: (a) What were the separable events and effects that the claimant had identified? 5 (b) When were these separate effects identified to the counsellor by the claimant? 3. On the basis of the information from the counsellor the Corporation will make recommendations for each separate claim for cover. 4. If the separate effects were identified prior to 1 October 1992 the claimant would be eligible to claim a lump sum if there was a valid election notice on their original file. The Review Officer then stated that in order to have entitlement to further lump sums through multiple claims, separate effects of the different abuses claimed for must have been identified to the Counsellor prior to 1 October 1992. In view of the fact that it was not until Ms Mckay report of 3 April 1996 that it was established that the separable effects were identified in the appellant's sessions with Ms Mckay in 1996, the claims did not come within the procedural requirements stated in the decision of I above. Accordingly, the Corporation's decision was upheld and it is that decision which has been appealed to this Court. The Law Sections 135(3) & (4) of the 1992 Act read: (3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the Ist day of October 1992 shall have the acceptability of the claim 6 determined under the Accident Compensation Act 1982 as if it had not been repealed. (4) Where subsection (3) of this section applies the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts as appropriate but subject to this part of this Act. Section 147(1) of the 1992 Act requires claimants eligible pursuant to section 135(3) to lump sums under the 1972 or 1982 Acts to elect either a lump sum or an independent allowance pursuant to the 1992 Act before 1st April 1993. Section 147(2A) states "For the avoidance of doubt it is hereby declared that, for the purposes of subsections 1 and 2 of this section no person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of the personal injury by accident has been lodged with the Corporation before the Ist day of October 1992." The question therefore, is whether this appellant can be said to have lodged a claim or claims for multiple sexual abuse before 1st October 1992. On the facts of this case, for the appellant to succeed she needs to establish that the claim form which she lodged on the 7 of August 1992, and any subsequent information pertaining to it, can be construed sufficiently wide enough to incorporate multiple claims for sexual abuse. In the decision of G V ARCIC (1994) NZAR 353, His Honour Judge Kerr was required to consider this same question where, in a claim lodged in August 7 1992, G claimed cover for sexual abuse and in the box headed Date of Injury the year 1975 had been written. After October 1992 it was discovered that it had been intended to make the claim for sustained sexual abuse in the years 1976 and 1982 as well. Judge Kerr in his decision stated as follows: "If I could deal with this appeal on the basis of fairness, I would have no hesitation in ruling, that it was through no fault of G that her doctor failed to mention she was making a multiple sexual abuse claim, when he prepared the form dated 21 August 1992. Unfortunately an ability to apply fairness in terms of the 1992 Act simply does not exist and I am obliged to apply the law as it is set out in that Act. No matter how one reads the claim form prepared and submitted by the doctor there is only one year on it. Namely 1975 and whilst "sexual abuse" might be interpreted as encompassing more than one incident of sexual molestation, because those words sexual abuse are governed by the year 1975 the sexual abuse can only relate to 1975. Accordingly unless the multiple sexual abuse took place in 1975, the claim must be restricted to the one incident. That therefore means the claim cannot include the 1976 and 1982 incidents. 'Lodgement of claim' as I interpret it means lodgement of the claim which relates only to the 1975 abuse." In the decision of His Honour Judge Imrie in ABC v ARCIC (47/95) His Honour was required to consider two claim forms relating to sexual abuse and in the respective forms the dates of the injury are stated as being June 1978 and November 1981. The Corporation had contented that two claims 8 only could be considered whereas the claimant was seeking multiple claims between those dates. In his decision, His Honour said: "In sexual abuse claims it is frequently artificial to limit the accident by reference to specific dates. There are two reasons for that. The first is that the term 'sexual abuse' is a phrase which often means sexual abuse that goes on over a period of time. The second is that because of the nature of sexual abuse it is frequently difficult for the claimant to accurately recall and put limits on when it happened. Often its victims are young or deliberately set out to forget it." His Honour went on to state: "The fact that the claim forms contained a box for "Date of Injury" is of no significance. The claim form did not inform claimants that to give an incorrect date of injury would deprive a claimant of cover. The Corporation recognised in its correspondence to the appellant (and to the Counsellor) that the particulars in the claim forms were not final... How that date of injury "box" would apply to personal injury by for example gradual process is difficult to see. The same comment applies to cases of multiple sexual abuse. It is unfair for the Corporation to accept the claim for sexual abuse and then limit the claim by a reference to a box marked "Date of Injury" or by reference to a letter from a Counsellor written at the time when the counselling has not revealed the extent of the sexual abuse." As a consequence of that reasoning the Judge allowed multiple claims for sexual abuse covering the period referred to in the Counsellor's report which was for a period 1978 to 1982 inclusive. His Honour observed that section 135(3) does not require particulars to have been lodged before Ist October 9 1992 and so the particulars which were lodged well after that expiry date were nevertheless taken as forming part of the claim previously made. Several decisions have been cited to me by both counsel. Some being decisions of this Court and some being decisions of the Accident Compensation Appeal Authority. For completeness I note that in addition to the cases already mentioned counsel for the appellant has referred to RB v ARCIC (78/95) Judge Ongley and I v ACC a decision of the Appeal Authority (195/95). Counsel for the respondent referred me to AB v ARCIC (4/96) Judge Ongley, ABC 4 v ARCIC (30/96) Judge Imrie V v ACC (378/94) - ACC Appeal Authority, Wv ACC (44/95) ACC Appeal Authority. The common thread which runs through all these decisions is that if a specific date is stated in the form with no other indicia that multiple claims are intended then the claimant will be confined to one claim even though he/ she may subsequently seek to have several claims included. However if the claim form indicates a period of abuse over months or years without specifying any particular date and other indicia that may follow are to the same effect, the fact that separate claims or incidents are not individually detailed in the claim form will not be a bar to the claimant subsequently claiming for separate incidents. I find that a person can be regarded as having lodged a claim within the meaning of section 135(3) of the 1992 Act for multiple claims of sexual abuse if the claim form is capable of being construed as covering multiple claims. I agree with Judge Imrie's decision in ABC v ARCIC which I have earlier recorded in this decision. 10 In the facts of the present case the claim form specified a period 1980-1981 in the box for the date and in the details section she stated: 'from October 1980 to April 1981 sexually assaulted by family friend aged 57, I told mother and she took me to a doctor." It is significant to note that on receipt of the claim form ACC wrote to the claimant as follows: "Please complete and return the attached C 12 Consent Form. This is required to obtain a report from the Counsellor you have been referred to by your GP. Please advise the name and address of the counsellor so we may obtain a report in the future. Please also complete and return the attached statutory declaration covering details of the abuse. This must be signed and witnessed by a lawyer or JP." As previously stated the C12 was returned giving further indication of the nature of the abuse which included indecent assaults and multiple rape. In the ABC v ARCIC decision Judge Imrie at page 26 considered correspondence from the Corporation not dissimilar from that in the present case to be significant and he opined that the wording suggests that there had been a general claim for sexual abuse and does not suggest that cover would be limited to particular dates or periods of time. As I have already noted, in March 1993 the claimant opted for lump sum compensation for claim A1808697/002 "and any other outstanding claims". Reviewing the facts of this case against the principles which can be distilled from previous decisions not dissimilar to the present case I find that the claim form lodged by the claimant did not intend to necessarily confine her to one claim. 11 The indicia which the Corporation had prior to 1st October 1992 gave more than adequate indication that there was a likelihood of multiple claims but that the details of same would need to be furnished in a formal way with a counsellor's report. In terms of section 135(3) I rule that the appellant has complied with that section and has lodged claims for multiple abuse prior to Ist October 1992 and in terms of section 147 she has signified her election to claim lump sum entitlement under the appropriate provisions of the 1972 or 1982 Acts by the cut-off date of 31 March 1993. Insofar as the Review Officer's decision is concerned I believe he was misconstruing the real issue in this case and seems to have confined himself to a determination of whether or not the appellant had followed a particular procedure for setting up claims for multiple sexual abuse which the Review Officer believed he was bound by under the Appeal Authority decision of I (191/95). I do not consider that the decision of I in any way determined that a particular procedure needed to be adhered to and that if it were not so then a claim could not be considered. The Review Officer was of the view that the I decision meant that the particulars of the abuse and the separate effects of same had to be identified prior to Ist October 1992. I hold that is not the case and that certainly is not the way Judges have treated the matter subsequently, in particular I refer to the decisions of Judge Imrie and also Judge Ongley in RB V ARCIC. Accordingly then the appeal is allowed and the decision on review is revoked and the Corporation will now need to determine what separate 12 claims are identifiable for separate consideration on the basis of the Counsellor's reports which have been received. The appellant was legally aided and I think it is appropriate that costs be awarded and I fix costs to the appellant of $850.00 together with any disbursements as fixed by the Registrar. DATED at AUCKLAND on this 30 day of October 1997 MJ Beattie District Court Judge tca.doc(gm)