Mental injury caused by certain listed offences

Contributed by Morgan Speight and current to 1 March 2017

There are 23 offences listed in Schedule 3 of the Accident Compensation Act that describe offender behaviour that can form the basis of a claim for mental injury.

Qualifying for cover

To qualify for cover:

• You must have been the victim of a criminal act set out in Schedule 3;
• The crime is more likely than not to have occurred (i.e. it need not have been prosecuted in a Court) ;
• The crime must have been committed by another person;
• You suffer a mental injury as defined in section 27 of the Accident Compensation Act 2001.

You will not have to prove the identity of the person that committed the offence, and it is not necessary that they have been convicted of committing the offence for you to be able to receive ACC entitlements, although it may help to establish that the offending happened.

If there was more than one instance of offending that causes you to suffer a mental injury, you will need to make a claim for each of these events.

Consenting to the activity

You will not qualify for cover from ACC if the injury occurred because of consensual activity.

The Court in KSB v ACC [2012] NZCA 82 held that your consent can be held not to be valid if you later discover that your partner was HIV positive and did not tell you before you consented. This means that if you later discover that your partner was HIV positive, and this causes a mental injury, then you are likely to qualify for ACC cover under s 21 of the Accident Compensation Act 2001.

When did the injury occur?

*This section is under revision in light of the Court of Appeal decision in Accident Compensation Corporation v TN [2023] NZCA 664*

For the purposes of this part of the law, s 36 of the Accident Compensation Act 2001 states that you are considered to have suffered the mental injury from the date at which you seek treatment, rather than the date that the offence occurred, or the date that you began to experience symptoms of a mental injury.

Section 36 of the Act is not flexible, which means that you can only receive ACC entitlements from the date that you first seek treatment for the mental injury. It is important to seek treatment as soon as possible.

Was the mental injury caused by the criminal act?

This is the most difficult thing to prove for a sensitive mental injury claim. It will be important to seek a medical opinion to support the application for cover. A medical opinion will be able to set out how likely it was that your mental injury was caused by the offence, and how much of your mental injury was caused by the offence.