A Russian child who was adopted by New Zealanders and suffered physical abuse in his home country has had his claim for PTSD as an adult declined.

Despite a High Court and District Court ruling the man was eligible for mental health cover, the Court of Appeal overturned their rulings, stating he is not entitled to cover for a mental injury because the physical assault occurred when he was not a New Zealand resident.

The man, whose name is suppressed, was born in Russia in August 2001 and arrived in New Zealand as a 3-year-old.

Twenty years later, while living here as a New Zealand citizen, he was diagnosed with PTSD stemming from abuse he suffered prior to arriving.

Is he entitled to compensation?

ACC declined his claim for mental injury cover, stating the physical injury had occurred when he was not a New Zealand resident and therefore he was not entitled to compensation.

Under the Accident Compensation Act 2001, for mental injury to be covered, it must arise out of a physical injury or be caused by certain criminal acts or a workplace incident.

The man challenged ACC’s decision, which was overturned by the District Court and on appeal from ACC, the High Court, which found his mental injury was suffered in New Zealand and therefore he was eligible for cover.

ACC took the case to the Court of Appeal, which had the task of determining where the physical injury occurred that triggered the mental injury.

The man’s lawyers, Beatrix Woodhouse and Mathew McKillop, argued the PTSD diagnosis in 2019 marked the point at which the mental injury was suffered and because he was living in New Zealand, this qualifies him for cover.

The lawyers submitted that although the act specifies a physical injury must match the mental injury, it does not specify a location.

Location where physical injury occurred is key 

The Court of Appeal determined that how the personal injury was caused was critical.

“Causation is the primary consideration. A mental injury which has arisen because of a physical injury may well be latent – the date the mental injury is triggered or the symptoms manifest is no doubt dependent on a variety of circumstances,” the court said in its recently released decision.

“But it is the physical injury which is the root of the mental injury. It is therefore the date and, in our view, the location, of that physical injury which is the key to whether cover is available under the Act.”

New Zealand's Court of Appeal is the last avenue to appeal ACC decisions. Photo / NZME

The Court of Appeal determined the High Court and District Court erred in their decision-making as the man was not a resident of New Zealand at the time of the abuse and therefore, is not covered for ACC.

“The Act cannot be interpreted as intending to provide cover for injuries caused overseas to people who are not ordinarily resident in New Zealand. Such an approach would mean the scheme was required to fund the consequences of events outside its jurisdiction and over which it could have no influence.

“In our view, it is clear that Parliament intended to provide cover for mental injuries suffered because of physical injuries where the causative physical injuries occurred in New Zealand or, if suffered outside New Zealand, when the person was ordinarily resident in New Zealand when the cause occurred.”

The parents of the man released a statement to NZME to the effect that they believe the decision is deeply unfair to their son.

“He is a New Zealander, adopted by New Zealanders under New Zealand law, and has known no other home,” the statement said.

“The Adoption Act is clear that an adoptee is to be treated as our natural-born child in every respect. Yet, due to an injury that occurred before his adoption, he is now denied ACC-funded treatment for a condition that only manifested later in life.”

Their lawyer Beatrix Woodhouse said the Court of Appeal is the end of the road for all ACC claims.

“Therefore this decision represents the definitive legal position on this issue. It sets a precedent for other cases with comparable facts,” Woodhouse said.

ACC deputy chief executive for corporate and finance Stewart McRobie told NZME the organisation was seeking clarification of the law and acknowledges the Court of Appeal’s decision.

“We also acknowledge the impact of the decision on the claimant and empathise with them and their family.”

Shannon Pitman is a Whangārei-based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/ Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.