Photo: Supplied
A child who was assaulted in Russia before his adoption into New Zealand has been declined cover for mental injury by ACC in the Court of Appeal.
The child, referred to as D in the recent decision by Justice Susan Thomas, was born in Russia in August 2001 and was a Russian citizen when he was physically assaulted as a young child.
In August 2004, D was adopted by New Zealanders and emigrated to New Zealand.
In November 2019, D was diagnosed with severe post-traumatic stress disorder (PTSD) attributed to the physical injuries he suffered in Russia.
He applied for ACC cover, and was declined - a decision that was confirmed on review in February 2020 - because the personal injury had not been suffered locally.
The decision to decline cover was appealed in the district court, which ruled ACC should have approved D's cover, because the mental injury resulting from those physical injuries was suffered in New Zealand.
That decision was then appealed in the High Court, and upheld, before escalating to the Court of Appeal.
Now, the Court of Appeal has set aside that decision, ruling D is not covered by ACC, as "the causative physical injury did not occur in New Zealand and D was not ordinarily resident in New Zealand at the time he was physically injured".
Thomas wrote in her decision that causation was the "primary consideration" as "it is the physical injury which is the root of the mental injury".
"When D suffered the physical injuries which caused his mental injury, he was neither in New Zealand nor ordinarily resident in New Zealand. It follows that D does not have cover under the Act."
She said that interpretation was "consistent with the overarching purpose of the Act, focused as it is on enhancing the public good and reinforcing the personal injury social contract between New Zealanders".
"The Act cannot be interpreted as intending to provide cover for injuries caused overseas to people who are not ordinarily resident in New Zealand. Such an approach would mean the scheme was required to fund the consequences of events outside its jurisdiction and over which it could have no influence."
The decision made no orders as to costs.
ACC's deputy chief executive corporate and finance, Stewart McRobie, said in a statement: "ACC was seeking clarification of the law and acknowledges the Court of Appeal's decision."
"ACC acknowledges the impact of the decision on the claimant, and empathises with them and their family."
Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
