Accident Compensation Act 2001

21A Cover under Accident Rehabilitation and Compensation Insurance Act 1992 for mental injury caused by certain criminal acts

(1)

This section applies to persons who suffered personal injury that is mental or nervous shock suffered as an outcome of any act of any other person, which act—

(a)

was performed on, with, or in relation to the claimant (but not on, with, or in relation to any other person); and

(b)

was within the description of any offence listed in Schedule 1 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act); and

(c)

was performed before 1 July 1992 (including before 1 April 1974) and was performed—

(i)

in New Zealand; or

(ii)

outside New Zealand, and the claimant was ordinarily resident in New Zealand within the meaning of the 1992 Act when the act was actually performed.

(2)

For the purpose of subsection (1),—

(a)

the personal injury is deemed to have been suffered on the date of the first treatment that the claimant received for that personal injury as that personal injury; and

(b)

that first treatment must have been received on or after 1 July 1992 and before 1 July 1999; and

(c)

the treatment must have been of a kind for which the Corporation was required or permitted to make payments either directly under regulations made under the 1992 Act or under an agreement or contract or arrangement under section 29A of the 1992 Act, irrespective of whether or not it made any payment in the particular case.

(3)

For the purposes of subsection (1), it is irrelevant—

(a)

that no person can be, or has been, charged with or convicted of the offence; or

(b)

that the alleged offender is incapable of forming criminal intent; or

(c)

whether or not the person who suffered the personal injury was ordinarily resident in New Zealand within the meaning of the 1992 Act when the personal injury is deemed to have been suffered.

(4)

Persons to whom this section applies are deemed to have had cover under the 1992 Act for the personal injury described in subsection (1), and the following provisions apply:

(a)

payments made by or through the Corporation (or a subsidiary of the Corporation) or the Department of Labour to those persons for a personal injury described in subsection (1), whether made before or after the commencement of this section, are deemed to be entitlements paid under the 1992 Act to the extent that the correct amounts were paid:

(b)

for the purpose of paragraph (a), it does not matter whether or not the payment is a payment made in the belief that section 8(3) of the 1992 Act provided cover:

(c)

entitlements available as a result of cover deemed by this section are subject to Part 13 of the Accident Insurance Act 1998 and Part 11 of this Act:

(d)

Part 5 applies to decisions made by or on behalf of the Corporation between 15 July 2003 and the commencement of this section on claims made under section 8(3) of the 1992 Act for which cover is deemed by this section, and Part 5 applies as if those decisions had been made on the date of the commencement of this section.

(5)

However, the following provisions apply to civil proceedings brought before or after the commencement of this section seeking general damages for mental or nervous shock suffered by a person as an outcome of any act described in subsection (1) (the proceedings):

(a)

if the plaintiff received judgment in the proceedings, in his or her favour, before the commencement of this section, the plaintiff does not have cover under this section for the injury or injuries to which the proceedings relate:

(b)

if the proceedings were filed, but not heard, before the date of introduction of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005, nothing in this section prevents the proceedings from being heard or prevents a court from awarding the plaintiff general damages for the mental or nervous shock:

(c)

if the plaintiff continues the proceedings, the plaintiff must declare to the court any payments and entitlements received from the Corporation for the personal injury for which damages are sought, and the court must take those payments and entitlements into account in awarding the plaintiff any damages:

(d)

on the date judgment is given in the proceedings, the plaintiff—

(i)

does not have cover under this section for the injury or injuries to which the proceedings relate; and

(ii)

must advise the Corporation of the judgment:

(e)

if the plaintiff loses cover by virtue of paragraph (a) or paragraph (d), the Corporation may not recover any part of an amount that is deemed by subsection (4)(a) to be an entitlement paid to the plaintiff under the 1992 Act.

Section 21A: inserted, on 11 May 2005, by section 8 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45).

Section 21A(4)(c): amended, on 3 March 2010, by section 5(3) of the Accident Compensation Amendment Act 2010 (2010 No 1).