Newsable: Court of Appeal closes ACC loophole for some child trauma victims

Tuesday, 20 February 2024

The Court of Appeal has upheld a Wellington High Court judge’s ruling on part of the ACC legislation

A Court of Appeal decision, that has flown under the radar since late December, could mean many more victims of childhood trauma are financially compensated by ACC.

Previously, a loophole related to the date of the abuse had meant some were missing out on Loss of Potential Earnings (LOPE) payments, because they had taken years to be able to speak about the trauma.

“It often takes a long time for victims of childhood sexual abuse to come forward, and that was really running against eligibility to this form of entitlement,” Bea Woodhuse from Barrister Comm told Stuff’s Newsable podcast on Tuesday.

Click the play button above to listen to the full story or click here.

Under ACC, a person is entitled to LOPE payments if they are unable to work due to ongoing mental trauma related to a mental or physical injury sustained before the age of 18.

However, ACC legislation states the date a person first complains or seeks treatment for a mental injury is deemed to be the date the injury occurred.

This has previously meant many victims have been ineligible to receive the LOPE financial compensation, as they had not applied for it before they turned 18.

In 2022, Wellington High Court Judge, Justice Cooke, said this part of the legislation “deprives those suffering from childhood sexual abuse from… compensation..” and determined “the date of injury… is the actual date of injury”.

ACC appealed this decision, however the Court of Appeal sided with Justice Cooke.

“It is a significant decision for claimants. It allows access to loss of potential earnings based on the actual date rather than an artificial date,” Woodhouse said.

Woodhouse has worked on a number of ACC cases, including the one at the centre of this decision.

“I’ve been working with [the claimant] for five years. And I think in this case that issue [of not seeking treatment before the age of 18] was particularly pronounced because the abusers were actively preventing her from seeking treatment.”

In a statement, ACC told Newsable it welcomes the clarity given by the court’s decision and that it is working hard to gain a thorough understanding of the decision and its impact so that it can implement it correctly.

ACC said getting that done is a priority, and it will be putting new systems and processes in place to support eligible survivors.

Listen to the full interview with lawyer Bea Woodhouse on this case here.

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