Melville High School's board of trustees lost an appeal against a decision allowing two former guidance counsellors to continue their case against the BOT in the Employment Court. Photo / Google Maps
Melville High School's board of trustees lost an appeal against a decision allowing two former guidance counsellors to continue their case against the BOT in the Employment Court. Photo / Google Maps
WARNING: This article mentions suicide and mental distress.
A husband and wife who worked as high school counsellors are suing the board of trustees for breaching health and safety obligations after they developed post-traumatic stress disorder from multiple student suicides.
Ron and Kath Cronin-Lampe claim the suicides at Melville High School between 1996 and 2012 seriously affected their mental health.
The couple first took their case to the Employment Relations Authority after which they challenged a determination in the Employment Court in July 2013, according to a Court of Appeal decision released today.
The case also went to the High Court at the same time and in December 2016 the pair applied to ACC for cover for the PTSD.
The Employment Court proceedings were put on hold while the claim to ACC was decided.
ACC declined the Cronin-Lampe's claim in September 2017 and the couple applied for a review that December.
At a hearing in June 2018, where the school board was represented by lawyers, the reviewer set aside the original ACC decision and consider the claim again.
Melville High School principal Clive Hamill. Photo / Stephen Barker
ACC did that, and declined cover again in December 2018.
The guidance counsellors made a second application for review in April 2020 but before it could be heard in February 2020, they agreed with ACC that they were not eligible for cover because their mental distress was not related to one single event.
The case came back to the Employment Court but the board argued the couple were obligated by law to continue their claim with ACC until it was exhausted and the question of jurisdiction was raised.
Employment Court Judge Bruce Corkill did not consider that claimants were required to pursue all review and appeal rights "ad infinitum" and he could not see why "needless litigation within the ACC regime" could have been intended.
This would be "inherently unlikely, illogical and contrary to the interests of justice", he said.
The board appealed this decision to the Court of Appeal, stating that the making of a claim for ACC cover triggered Section 133(5) of the ACC Act.
This section provides that if a person had a claim under this Act, and had a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter.
But Justices David Collins, Murray Gilbert and Stephen Kos of the Court of Appeal agreed with Judge Corkill that it was not Parliament's intention that a claimant who accepted ACC's decision declining cover would then be required to challenge that decision before being able to pursue remedies in another court.
"We cannot see any useful purpose being served by requiring claimants to challenge by way of review or appeal decisions of the corporation they agree with.
"It is unclear what grounds they would advance in their application for review or appeal and what point would be served by the hearing or the requirement for a reasoned decision.
They said the board's argument overlooked the fundamental point that review and appeal rights were granted for the benefit of parties seeking to alter the determination.
"A claimant cannot be expected to seek review or appeal against a decision he or she does not challenge, even assuming there was a right to do so.
"Such a review or appeal would likely be regarded as frivolous and an abuse of process. It would be directly contrary to Parliament's intention for disputes about cover to be resolved speedily and efficiently."
The justices also said the Supreme Court decision the board relied on to make its case was different because ACC accepted that person's claim for cover but he later disputed it.
Open Justice has approached Melville High School principal and board member Clive Hamill and the Cronin-Lampe's for comment.
WHERE TO GET HELP • Lifeline: 0800 543 354 (available 24/7) • Suicide Crisis Helpline: 0508 828 865 (0508 TAUTOKO) (available 24/7) • Youth services: (06) 3555 906 • Youthline: 0800 376 633 • What's Up: 0800 942 8787 (11am to 11pm) • Depression helpline: 0800 111 757 (available 24/7) • Rainbow Youth: (09) 376 4155 • Helpline: 1737 If it is an emergency and you feel like you or someone else is at risk, call 111
