KSB v Accident Compensation Corporation

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 12 March 2012
• Neutral Citation: [2012] NZCA 82
• Docket Number: CA793/2010
• Court: Court of Appeal
• Date: 12 March 2012

Between

KSB

Appellant

and

Accident Compensation Corporation

Respondent

[2012] NZCA 82

Court:

Glazebrook, Arnold and Ellen France JJ

CA793/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from High Court on questions of law — appellant (“A”) suffered post-traumatic stress (“PTSD”) disorder after discovering partner (“P”), with whom she had had unprotected sex, was HIV positive — P convicted of criminal nuisance — A's claim for compensation was treated as an application for cover for mental injury caused by certain criminal acts under s21(1) Accident Compensation Act 2001 (cover for mental injury caused by certain criminal acts) — cover declined by Accident Compensation Corporation, District Court and High Court as the causative events of PTSD were not covered within descriptions of crimes covered — whether it was necessary to establish P did not believe A consented to the sexual connection and that he had no reasonable grounds for such belief in the case of sexual violation — whether failure of P to disclose HIV status vitiated A's consent to sexual intercourse.

Counsel:

J M Miller and K Lau for Appellant

A D Barnett and L Rice for Respondent

D B Collins QC Solicitor-General and P D Marshall for Attorney-General as Intervener

• A We answer the first question on the case stated “yes” and the second question “no”. The appeal is allowed.

• B Costs are reserved.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No
Introduction	[1]
Cover for mental injury	[6]
Section 21 of the 2001 Act	[7]
Is it necessary to prove absence of consent and absence of reasonable belief in consent?	[10]
The competing contentions	[11]
Discussion	[16]
Does non-disclosure of HIV vitiate consent?	[33]
The submissions	[35]
The position in other jurisdictions	[39]
The English cases	[40]
Canada	[49]
Australia	[53]
The United States	[56]
The New Zealand position	[57]
Discussion	[71]
Result	[99]

Introduction

1 The appellant sought compensation from the respondent for mental injury which she suffered after she learnt that her partner, with whom she had had unprotected sex, was HIV positive. He had not disclosed this fact to her during their relationship. Although the appellant did not become infected, she has suffered post traumatic stress disorder as a result of the experience. The appellant's former partner was convicted of criminal nuisance for failing to disclose that he was HIV positive (s 145 of the Crimes Act 1961).

2 The appellant's claim for compensation was treated as an application for cover for mental injury caused by certain criminal acts under's 21(1) of the Accident Compensation Act 2001 (the 2001 Act). Section 21(2) of the 2001 Act relevantly provides cover for mental injury suffered by a person as a result of any “act” which is “within the description of an offence listed in Schedule 3” of the 2001 Act. Schedule 3 lists a number of crimes, most of which are sexual in nature (including sexual violation), by reference to the relevant sections in the Crimes Act. It does not refer to s 145 of the Crimes Act.

3 The respondent declined cover on the basis the causative events were not an offence within the description in Schedule 3. On review, the respondent's decision to decline cover was upheld on the basis of the High Court decision in CLM v ACC. 1 In that case, Randerson J upheld the decision to decline cover in relation to materially identical facts. 2

4 The appellant in the present case appealed unsuccessfully to the District Court but was granted leave to appeal to the High Court. 3 When the matter came to the High Court, Joseph Williams J agreed the appeal should be dismissed in light of Randerson J's judgment in CLM v ACC, and granted leave to appeal to this Court. 4 Joseph Williams J stated two questions of law, namely: 5

• (a) Whether the failure of the appellant's partner to disclose his HIV status to the appellant vitiates her consent to sexual intercourse so as to constitute a sexual violation or indecent assault for the purposes of cover for mental injury under's 21, and … Schedule [3] to the Accident Compensation Act 2001; and

• (b) Whether, in addition to establishing that the appellant did not consent, it is also necessary to establish that the appellant's partner did not believe that the appellant consented to the relevant sexual connection and that he had no reasonable grounds for such belief in the case of sexual violation.

5 As the matter was initially argued, the primary issue arising from these questions was whether s 21 of the 2001 Act allowed a different interpretation of what comprised an offence to that in the criminal law. On the appeal to this Court, the Attorney-General sought and was granted leave to intervene. The submissions filed on behalf of the Attorney-General raised a further issue, namely, whether non-disclosure of HIV positive status prior to engaging in unprotected sex could vitiate consent in the criminal law. We address both issues. 6

Cover for mental injury

6 At the time the appellant's claim was lodged (1 October 2004), the question of her cover was dealt with under's 21 of the 2001 Act.

Section 21 of the 2001 Act

7 Section 21(1) provides that a person has cover for mental injury where the injury was suffered on or after 1 April 2002, the mental injury is caused by an act performed by another person, and the act is of a kind described in s 21(2).

8 Section 21(2)(c) provides that s 21(1)(c) applies to an act that “is within the description of an offence listed in Schedule 3”. As at 1 October 2004, Schedule 3 was in the following format: 7

Cover for mental injury caused by certain acts dealt with in Crimes Act 1961

Section

• 128 Sexual violation

• …

• 135 Indecent assault on woman or girl

• …

• 201 Infecting with disease

The Schedule was subsequently amended in 2005 to reflect the changes to ss 128 to 142 of the Crimes Act. Those changes are not significant for present purposes.

9 Reference should also be made to s 21(5), which states as follows:

For the purposes 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.

Is it necessary to prove absence of consent and absence of reasonable belief in consent?

[10] We first set out the relevant submissions before discussing the language and purpose of s 21 and what that means in terms of coverage for the appellant.

The competing contentions

[11] The appellant's primary position is that in order to be eligible for cover under's 21, the appellant need only establish the requisite harm has resulted from an act of intercourse. It is not necessary to show that the act was non-consensual or that there was an absence of reasonable belief in consent. Mr Miller's submission for the appellant under this head is that the wording of s 21 allows of a different interpretation to that applying in the criminal law context.

[12] Mr Miller emphasises two points. First, the no-fault nature of the accident compensation scheme with the resultant focus on assisting the injured claimant. Under that scheme, matters such as the mental state of the wrongdoer should be of little concern. Secondly, Mr Miller says the wording used in the Act is significant. His focus is on the requirement that the “act” fall within the description of the offence. Again, he submits, this suggests that it is not necessary to satisfy all the elements of the listed offence. Mr Miller makes an associated submission, namely, that the legislature could have easily used different wording, for example, by referring to the mental injury caused by an offence committed by the offender. Mr Miller sees s 21(5) as supporting his submission because it suggests an approach different from that necessary to establish the offence under the criminal law is to be applied.

[13] Finally, Mr Miller submits there is no need for concern his approach will open the floodgates to claims of this nature. That is because the claimant will still have to satisfy the need for a mental injury and show a causal link with some form of conduct by the offender that brings it within the wording.

[14] The respondent's argument is that, in the ordinary and natural meaning of the words used, all of the elements of the offence, including both a lack of consent and of reasonable belief in consent, must be present. Mr Barnett for the respondent submits that s 21 requires that the act constitute an offence and it is not an offence without all of the elements.

[15] Mr Barnett contends that the respondent's approach is consistent with the fact that the 2001 Act makes provision for only very limited cover for mental injury. He says there are a multiplicity of cases excluded which, in principle, it might otherwise thought fairly should be covered but that is not the approach taken in the 2001 Act. In his submission, where it is intended plain words in s 21(2) are to be departed from, that is expressly provided for in s 21(5). Section 21(5)(b), which applies “for the purposes of” s 21, is otherwise redundant.

Discussion

[16] The starting point is the language used. The act must be one “within the description” of one of the listed offences. The relevant listed offence in this case is sexual violation by rape. Sexual violation is defined in s 128(1) of the Crimes Act as including rape. Person A rapes person B if person A has sexual connection: 8

• (a) without person B's consent to the connection; and

• (b) without believing on reasonable grounds that person B consents to the connection.

[17] The...