Woman appeals ACC decision in HIV case

A woman who had intercourse for four months with a man who did not tell her he was HIV positive is appealing against an ACC decision to refuse payment for mental injury.

ACC declined cover for the woman, referred to only as KSB in Justice Jill Mallon' decision in the High Court in Wellington last week.

The ACC decision had been upheld by a reviewer and then by the district court.

But Justice Mallon allowed the woman to continue with her appeal.

Her lawyers say that eventually they want the issue tested in the Court of Appeal.

The judge said that the woman's partner had not told her he was HIV positive.

She is claiming cover for mental injury.

Her former partner was convicted for criminal nuisance under the Crimes Act.

The judge said that mental injury caused by certain criminal acts was covered under the Injury Prevention, Rehabilitation, and Compensation Act but criminal nuisance was not one of them.

She said that the woman's claim for cover was on the basis that the man's offending was also a criminal act of a kind that was covered by the IPRC Act, such as sexual violation or indecent assault.

Lawyers for the woman accepted that the district court was bound by an earlier decision, CLM v ACC, though that case never went as far as the Court of Appeal.

The judge said that in that case, which dealt with similar issues, the High Court had ruled that it was not a criminal act of the kind contemplated because those acts required lack of consent.

"In that case, as in the present, the sexual intercourse was consensual.

"The High Court concluded that under New Zealand law, as it presently stood, the non-disclosure by the man that he was HIV positive did not vitiate the woman's consent."

The High Court judge said at the time that any change to the law in this respect was a matter for Parliament.

- NZPA