Sexual abuse survivor did not have earning potential when abused from age 2, says ACC

The potentially precedent-setting case came before the Court of Appeal in Wellington today. Photo / Mark Mitchell

WARNING: This story discusses distressing content, including child sexual abuse.

ACC is challenging a court decision to grant compensation for lost potential earnings to a woman who was sexually abused from the age of 2.

The woman, now aged in her 50s, has name suppression and is referred to as TN.

She first inquired in 2018 about lost potential earning compensation for mental injuries from abuse she suffered at the hands of family members during her childhood and teenage years.

That was declined in the District Court, but TN successfully took her claim to the High Court last year.

The Accident Compensation Corporation [ACC] today challenged TN’s claim in the Court of Appeal in Wellington.

They believe, based on the definitions set out in the Accident Compensation Act, TN doesn’t qualify for potential earning compensation because she did not seek treatment for mental injuries from the abuse before she turned 18.

A potential earner as defined by the Act is someone who suffered a personal injury before turning 18.

The case itself is complicated, and lawyers involved say it has “anomalies” that may need to be addressed by Parliament.

It took decades for the woman to come forward about the abuse she suffered at the hands of her grandfather and uncle.

Both men were sent to prison when TN was in her 30s. The abuse she experienced was “severe and protracted” from the age of 2 until she was in her mid-teens.

TN told the court she disclosed the abuse from as young as 7 but was told to “shut up” by family members who stopped her speaking out about the “grievous” sexual harm.

She wasn’t allowed to see a doctor unaccompanied, which meant reporting the abuse before 18 was difficult, according to TN.

When she ran away from home as a teenager, she was brought back by a man who was then invited by her father to stay in her room for several months.

The man forced TN to have sex with his younger brother and during this time she fell pregnant.

Visiting the GP about the pregnancy, TN was accompanied by her mother.

She told the court in an earlier affidavit if she had been by herself, she would have disclosed the abuse and the distress it caused.

The pregnancy was a reminder of the abuse she had experienced, TN said.

She sought treatment in 2008 for her “mental injuries”, among them post-traumatic stress disorder, depression and bulimia all a result of the abuse, which ACC covered.

But by this time she was in her late 30s, and it was two decades after the abuse ended.

She then sought compensation for loss of potential earnings and at a hearing in the District Court in 2020 Judge Chris McGuire said the issue was whether TN was a potential earner during the time she was abused, not when she first sought treatment.

Judge McGuire declined TN’s appeal, and upheld Section 6 of the Accident Compensation Act.

TN didn’t give up on her cause, and by 2021 had leave to appeal the decision to the High Court.

In June 2022, High Court Justice Francis Cooke allowed the appeal, and asked ACC to assess her compensation claim.

Cooke said the provision that TN should have sought treatment before 18 to qualify under the Act as a potential earner went against Parliament’s purpose with the Act.

“This would be to reintroduce the very kind of time limitation that Parliament had regarded as unreasonable for those suffering mental injury from sexual abuse as a child,” Justice Cooke said in his 2022 decision.

But ACC appealed to the Court of Appeal with its lawyer, Laura O’Gorman, KC, submitting the heart of the case was about loss of potential earnings that were never achieved, not earnings that were impacted at the time of the injury.

The case discussed the legal test applied by the Act, and whether TN’s case qualified.

ACC argued that personal injury occurred at the time TN sought treatment in her 30s.

Lawyer Beatrix Woodhouse, acting for TN, asked the court to uphold Justice Cooke’s 2022 decision, and argued the compensation was a path to “vocational rehabilitation”.

Woodhouse submitted that despite not having cover formalised from the date TN was abused, “it does exist blatantly from that date of abuse”.

TN suffered her abuse as a child and teen, and Woodhouse said this fact should entitle her to be deemed a potential earner, qualifying for compensation.

“It shouldn’t detract from a time or place an injury was actually suffered,” Woodhouse said.

“In our submission this interpretation should be upheld,” she said.

The decision of Justices Graham Lang, Brendan Brown, and Matthew Palmer was reserved.