Wei in the Estate of Wei v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND Decision No. 338/2004 Appeal No. AI 307/03 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 BETWEEN IRENE WEI IN THE ESTATE OF PETER WEI Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND 19 February 2004 DATE OF THIS DECISION: 26 October 2004 COUNSEL: Mr M I Koya for appellant Ms F Becroft for respondent DECISION OF JUDGE P F BARBER The Issue [1] The appellant disputes a 16 December 2002 decision of the respondent that it could not accept that the death of her late husband (Mr Peter Wei) from a heart attack was due to an accident, and declining her claim for cover. Since the hearing, there has been further evidence by consent and further submissions related to that. Background [2] On 23 October 2002 the appellant completed an Advice of Fatal Injury form to the respondent advising that her husband died on 24 July 2001 following an assault and a fatal heart attack. [3] On 9 December 2002 the Coroner prepared a report indicating that the deceased had died as a result of ischaemic heart disease secondary to atherosclerotic coronary vascular disease. 2 [4] On 13 December 2002 a Branch Medical Advisor, Dr Ruttenberg, reviewed the information provided by the appellant and indicated: “There is evidence of previous ischaemic heart disease. There is no evidence of significant injury that could have caused his death. While stress could have been a contributing factor, he died because of significant coronary artery disease.” [5] On 16 December 2002 the respondent issued a decision declining cover to the appellant on the basis that the deceased had suffered from significant coronary artery disease, which indicated that the deceased’s death was not accident-related. [6] On 22 March 2003 the appellant applied for a Review of the respondent’s decision indicating that she disagreed with it primarily because the deceased had never shown any symptoms of heart disease. [7] The Review was heard on 20 May 2003 before Ms Maree Hill, Reviewer who issued a decision on 23 May 2003 confirming the respondent Corporation’s decision. [8] The appellant filed a Notice of Appeal against the Reviewer’s decision on 18 June 2003. [9] In October 2003 the appellant filed a brief of evidence from Mr Ted Clark, Cardiologist, who appears to postulate that the cause of the deceased’s heart attack was the physical effort made by the deceased in resisting the attack; but I refer further to Mr Clark’s evidence below. Obviously, his evidence was not available to the Reviewer. The Review Decision [10] The Review decision is thorough and clear and needs careful consideration. The Reviewer dismissed the application for review on the basis that there is no causal link, apart from a temporal one, between the assault on the late Mr Wei and his heart attack. [11] On 24 July 2001 Mr Wei was attacked by three youths while he was working in his electronics shop at Papatoetoe, Auckland. He was struck in the face by one of the youths and while one of them went into the back of the shop to take a number of CD- ROMS, Mr Wei struggled with the other two in the front of his shop and was punched in the head a number of times. Some members of the public came to Mr Wei’s assistance and called Police and an ambulance. Police spoke with him after he had declined offers of medical assistance. However, while giving a statement to the Police in his shop, approximately half an hour after the robbery, Mr Wei collapsed without warning and could not be resuscitated, and died. [12] The Reviewer referred to various passages in the report of the Pathologist, Dr Stables, and in the Coroner’s report of 9 December 2002. The Reviewer referred to evidence given at the review hearing, and to Mrs Wei and a close friend (Mr Matthew) stating that the late Mr Wei had been a very fit and healthy man and not even his GP knew he had any heart disease. They believed that Mr Wei did not know of his heart condition. They referred to him as able to carry out heavy physical work up to his death. [13] The essential reasoning of the Reviewer reads as follows: 3 “The onus is on Wei to prove her husband’s death was caused by the assault in July 2001. The standard of proof is the balance of probabilities. Section 26(3) of the Injury Prevention, Rehabilitation and Compensation Act 2001 specifically rules out a cardio-vascular or cerebro-vascular episode as a personal injury unless it occurs either by: • Medical misadventure; or • Physical effort or physical strain when a person is performing his or her employment and that effort or strain is abnormal in application or excessive in intensity for that person. (Section 28(3)). As medical misadventure is not relevant here, the matter must be considered under s.28(3) of the 2001 Act. Mrs Wei said that she did not think s.28(3) applied to her husband as he was suffering from the stress of being attacked. Unfortunately the only way in which cover can be given is if Mr Wei meets the criteria in s.28(3). There are three components to that subsection which must be met for the cerebro- vascular episode to be covered: • The episode must have occurred while the person was carrying out some employment task; and • There must have been some physical effort or physical strain, which was abnormal or excessive in intensity; and • That physical effort or strain must have caused the cerebro-vascular episode. It is accepted that the episode did occur at work. In respect of the second criteria, it does not appear that Mr Wei’s claim would meet this either. As noted the Coroner could not exclude stress as a factor in the death. However what is required is physical effort or physical strain. Mrs Wei has suggested in her letter of 14 October that her husband suffered tremendous stress in the moments before his death. This would appear to be physiological stress. That unfortunately does not meet the definition of physical. However Dr Stables also commented on exertional stress. Therefore this ‘stress’ could be extended to include the physical effort in the struggle during the assault. This would clearly be abnormal and excessive in intensity. Therefore the second criteria could be met. However it still does not meet the last criteria because this physical effort did not cause the heart attack. I can certainly understand the comments made by Mr Matthews and Mrs Wei. In their view the three offenders caused Mr Wei’s death. Mr Wei was perfectly 4 healthy prior to the assault, he was then assaulted and immediately died of a heart attack. The association is undeniable. He was assaulted and then he died. Unfortunately the issue of causation is not that simple. In order to establish the cause of the death, I, like ACC, must be guided by the medical evidence on file. While there is clearly a temporal connection between Mr Wei’s death and the assault, the medical evidence does not find an actual causal link. The Coroner noted: ‘The issue of causation is difficult. It involves the vexed question as to whether the actions of the three youths caused Peter Wei’s death i.e. did their actions in robbing and assaulting him cause him to have a heart attack? The crucial evidence is that of the Forensic Pathologist, Dr Simon Stables. His view is that the cause of the death was (in ordinary language) a heart attack and that Peter Wei had narrowing of the arteries which supply the heart with blood and oxygen. Dr Stables is also clear in his view that the external injuries – those from the assault by the youths – were not fatal, nor were there any fatal internal injuries.’ As has been seen in this forum on numerous occasions, an accident often brings to light an underlying medical condition. That condition, which was previously asymptomatic, then becomes symptomatic and in this case, caused death. It cannot be said that the accident, being the assault caused the death, only that the accident caused the condition to manifest itself. Therefore, the cause of death is not the accident, but the underlying medical condition. … The question to be asked is whether disease is the whole or substantial cause of the death. In this case the answer to that question is that the heart condition was at least the substantial cause. I accept Mrs Wei’s statements that her husband was a very fit and healthy man and that it was unlikely that he was aware that he had this disease. The fact remains that he did have this disease. It appears to have been lying dormant and was clearly triggered by the events of 24 July 2001. The assault made that condition manifest itself. The assault however did not cause the heart disease. I appreciate that Mrs Wei also believes that ‘but for’ the assault, her husband would be alive. Unfortunately the ‘but for’ argument has no basis in ACC law. In the District Court decision of De Vos (8/03), Judge Beattie stated: ‘The “but for” test does not record the correct principles of law applicable in this situation and enunciated in the decisions of Burke (198/98) and others.’ I have tremendous sympathy for Mrs Wei and appreciate the logic of her arguments. However, I like ACC, must apply the law and as it stands the law does not accept Mr Wei suffered a work related personal injury. 5 For the forgoing reasons, I find that ACC’s decision of 16 December 2002 is correct and the application for review is dismissed.” [14] Also in the course of the above reasoning, the Reviewer referred to the High Court decision of McDonald v ARCIC [2002] NZAR 970 (H.C. per Pankhurst J) to which I refer below. The Relevant Statutory Provisions [15] The relevant provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001 (“the Act”) are ss.20, 26 and 28. Section 26 defines “personal injury” to include, inter alia, “the death of a person” (s.26(1)(a)), but by s.26(2) excludes personal injury “caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h)” none of which apply in this case. Also, s.26(3) excludes “a cardio-vascular or cerebro-vascular episode unless it is a personal injury of a kind described in s.20(2)(i) or (j)”, and 20(2)(i) does not apply, but s.20(2)(j) is in issue. That subsection provides cover for personal injury suffered in New Zealand if (inter alia) it is: “20(2)(j) personal injury that is a cardio-vascular or cerebro-vascular episode that is personal injury suffered by the person to which s.28(3) applies”. [16] Section 28 deals with work-related personal injury and in s.28(3) reads: “(3) Work-related personal injury includes a cardio-vascular or cerebro-vascular episode suffered by a person, if the episode is caused by physical effort or physical strain, in performing his or her employment, that is abnormal in application or excessive in intensity for the person”. The October 2003 Evidence of Dr T Clarke, Cardiologist, of Auckland [17] As referred to above, Dr Clarke’s written brief of evidence was accepted as evidence in this appeal by consent without his appearance (so that he was not cross- examined) and the salient parts of his evidence read as follows: “10. Cardiology in brief, is the study of heart disease and vascular disease. 11. Ischemic heart disease is atherosclerotic coronary disease causing clinical syndromes of angina and myocardial infarction (heart attack). 12. Atherosclerotic coronary disease is that disorder where the coronary arteries, the nutrient arteries of the heart, are affected by deposits of cholesterol, blood fats and blood clots so that these arteries can be blocked partially or totally. 13. These diseases are common and coronary disease is the commonest cause of death in New Zealand and in many other nations in the world. 14. Ischemic heart disease or coronary disease is, these days, very treatable and controllable, but of course not, at this stage, totally preventable or curable. 6 15. My experience is long and involved with these diseases, in excess of 30 years. 16. I do not know how many patients I have treated with these diseases but they would be many. 17. I do not know why the disease was not detected in Mr Wei before his death, but it is well known that coronary atherosclerotic disease can be ‘silent’. This is most commonly seen in people with diabetes but a well-established statistic is that about 30% of heart attacks are clinically silent. The classic symptoms of coronary disease really are those of either chest pain which occurs in a rather predictable manner with exertion and relieved by rest; the pain is often described as being a heavy or squeezing pain in the upper anterior chest; and there is radiating of the pain to either or both arms or up the throat and into the jaw. When a coronary artery is totally blocked, then a heart attack occurs and this is often heralded by quite severe chest pain, which is prolonged, and damage occurs in the heart muscle. This latter does not occur usually with angina. Sometimes these classic symptoms are not present and the presentation to the doctor may be that the patient complains of inappropriate breathlessness or tiredness. Of course, one of the classic presentations as well, can be that of sudden and unannounced death, which is what appears to have happened in Mr Wei's’case. 18. There is a significant body of evidence in the medical literature supporting the relationship of sudden cardiac death to emotional/psychological stress in both experimental animals and humans. 19. The physical effort made by Mr Wei in attempting to defend himself against his attackers would, in my opinion, have been abrupt and strong, and therefore associated with a massive increase in circulating adrenaline and activation of the sympathetic nervous system. 20. As a cardiologist, I see this situation as ideal for causing myocardial ischemia (given his coronary artery disease) and consequently, ventricular fibrillation whereby the heart is rendered unable to effectively pump blood around the body. Of course, if the situation is not reversed promptly, death is the outcome. 21. I, of course, agree that coronary heart disease can produce sudden death but I would add that coronary heart disease does not inevitably do this. Indeed, substantial numbers of people with coronary disease just like that of Mr Wei develop angina or heart attacks and with modern management, the lives of such people are not only prolonged but enhanced in terms of quality of life. 22. I would state that with high levels of circulating adrenaline and activation of the sympathetic nervous system, these will conspire to make his heart beat with more force and more rapidly, thus increasing the work the heart would do and because of his existing narrowed coronary arteries, this would bring about myocardial ischemia, that is a lack of sufficient oxygen in the heart muscle itself. This could then set up ventricular fibrillation (cardiac arrest) or 7 cause damage to the myocardial cells (heart muscle cells). I have also stated that if Mr Wei had not suffered this assault, he may have developed symptoms of a coronary disease, whilst of course not being able to say that he would not have had a sudden death either. However if he did develop symptoms of coronary disease and sought medical attention for this, as I would infer that he would, then he may have had the benefits of modern-day management with medication or intervention with angioplasty and stenting of the coronary arteries or coronary bypass surgery. 23. Whilst it is not possible to know whether or not Mr Wei would be alive today had this assault not occurred, I believe that there existed at least a 50% chance of his being so, although he may have at this stage developed angina or even had a non-fatal myocardial infarction, or he might have had coronary angioplasty and stenting, or coronary bypass surgery.” [18] On 30 April 2004, I issued the following memorandum to the parties; “MEMORANDUM TO THE PARTIES [1] I have given quite some thought to this case and emphasise that before me there is the evidence of a Cardiologist (Mr Ted Clark), but that evidence was not before the Review Officer. She relied on the evidence of the Pathologist, Dr Stables, who would not be a heart specialist. [2] The problem which I presently have is that both Dr Stables and Mr Clark seem to be saying that there was pre-existing disease to the late Mr Wei’s heart, but their reason for saying that seems to be that one or more of the arteries to his heart had narrowed or were always more narrow than they should have been. That would not seem to be heart disease. Apparently, the arteries were not blocked in any way. Perhaps, the residual effect of the late Mr Wei (apparently, unawares) having had an earlier minor heart attack is to create heart “disease”. [3] I need further evidence from some expert – perhaps, Mr Clark, as to whether the late Mr Wei had coronary “disease” as Mr Clark and Dr Stables seem to put it. In other words, did he suffer from “disease” of the heart? What was the nature of his “ischaemic heart disease” as both Dr Stables and Mr Clark put it? Again, why does Dr Stables refer to “pre-existing heart disease”? [4] I would have thought that if the late Mr Wei naturally had one or more arteries which were smaller than usual, and there was no clogging of his arteries to his heart, nor any other deficiencies to his heart, then he was not suffering from heart disease. [5] I suggest that counsel confer between themselves and, if possible, provide me with a joint memorandum on my above queries or as to how they can be answered. Failing that, it would be best for my Registrar to arrange a Directions Hearing of counsel with me by phone conference call.” 8 [19] That led to Mr Koya submitting a further report from Dr Clarke dated 12 July 2004 the substance of which reads as follows; “Judge Barbour makes five points in his Memorandum. Point 2. I would like to make it clear that the reason for saying that Mr Wei had narrowing of the coronary arteries of his heart was that at the post mortem this was observed, and the narrowing was caused by the pathological process known as atherosclerosis. This is an acquired disorder, one does not have it at birth and it is rare in people below the age of 20, and is most prevalent from the fifth decade of life onwards. Atherosclerosis means that there are deposits of cholesterol and other fats, blood clots, cells of inflammation and fibrous tissue which distort the inner lumen of arteries. It can progress slowly to bring about considerable narrowing of the arteries so that blood flow is difficult through the arteries and in the majority of cases total blockage occurs via the mechanism of a blood clot on top of the atheromatous plaques, brought about by rupture or ulceration of the plaques within the arteries, usually culminating in total cessation of blood flow through that artery if the blockage is total, and as a consequence there is an absence of oxygen supplied to the tissue that that artery normally supplies with oxygen. If that total blockage of oxygen flow to the heart muscle goes on for longer than about 15-30 minutes, death of the heart muscle occurs. This can result in death of the individual or life with a damaged heart afterwards. In Mr Wei’s case, the amount of atherosclerosis was deemed to be severe by the pathologist Dr Stables and there was indeed complete blockage of one of the coronary arteries known as the circumflex artery and it is evident that there was patchy mild interstitial scarring within the postero-lateral part of the left ventricular wall which is the territory supplied by that circumflex artery. The above findings in the artery and the heart muscle predated Mr Wei’s death, hence Dr Stables’ reference to “pre-existing heart disease”.” [20] That led to further submissions from Ms Becroft (received 13 September 2004) in which she referred to Dr Clarke having acknowledged in his further report of 12 July 2004 that the deceased suffered from atherosclerosis, a disease resulting in narrowing of the arteries. This is an acquired disorder and most prevalent from the fifth decade of life onwards. The disease progresses slowly and results in narrowing of the arteries hindering blood-flow through the arteries, and it eventually can lead to total blockage resulting in total cessation of blood-flow. Total blockage, in turn, can result in death. The deceased suffered from the severe atherosclerosis and Ms Becroft submits that the pathologist’s evidence indicates that there was indeed complete blockage of one of the coronary arteries. [21] Accordingly, Ms Becroft makes the submission that the deceased suffered from a severe heart disease which resulted in clogging of the arteries and, on a balance of probabilities, ultimately lead to death. She put it that the fresh evidence from Dr Clarke is very much in line with that provided earlier by the pathologist, and the coroner. She also puts it that although, in his affidavit, Dr Clarke was of the opinion that the assault may have played a role in the deceased’s death, he was unable to exclude the effects of 9 the deceased’s atherosclerosis and, indeed, indicates that there was at least a 50% chance that the deceased would have suffered a heart episode without the assault. [22] Finally then, she submits that, in the present case, the weight of medical evidence shows that the deceased’s death was in relation to the pre-existing disease. [23] Mr Koya’s response is that the further evidence from Dr Clarke adds nothing of substance to what was already known. Mr Koya refers to Dr Clarke having made it very clear in his October 2003 brief that, although the deceased was suffering from a clogging of his arteries, the death was caused by the adrenaline rush and the sudden extra demand on the heart which was, in turn, caused by the 24 July 2001 assault on the deceased. He referred to clogging of the arteries being a very curable disease these days. Reasons for Decision [24] I agree with Ms Becroft that in order for the appellant to have been entitled to cover under the Act it must be shown that his death was not caused by a cardio- vascular episode; although an issue is whether the facts of the case come within s.28(3). It is submitted for the respondent that the medical evidence shows that the cause of the late Mr Wei’s death was a pre-existing ischaemic heart condition, and it was this underlying and pre-existing condition which ultimately caused his premature death. Ms Becroft submits that the appellant’s personal injury is expressly precluded by the legislation referred to above, on the basis that it is a cardio-vascular episode unrelated to either medical misadventure nor a work injury. It is certainly unrelated to medical misadventure, but Mr Koya submits that it is a work injury. [25] Ms Becroft submits that there is medical evidence establishing that the cause of the appellant’s death was “clearly cardio-vascular in nature”. She referred to Mr Stables’ post-mortem of 24 July 2001 showing fresh superficial linear laceration on the inside left lower lip, with some minor adjacent bruising and also minor bruising on the inner right lower lip. He had also noted that there were two small red bruises, one lateral to the right eye, and the other on the outer end of the right eyebrow; that the right upper arm and right knee showed further minor abrasions; but there were no other physical findings of note. In her written submissions Ms Becroft then stated as follows: “5.9 Mr Stables reported: ‘This man has ischaemic heart disease secondary to atherosclerotic coronary vascular disease (narrowing of the arteries which supply the heart with blood and oxygen). There is evidence of a previous small heart attack. I have been informed that this man was the victim of an alleged assault a short time before he collapsed and died. While there are some external injuries present none of these are fatal injuries, nor are there any fatal internal injuries. … Stress, either exertional or psychological, may precipitate sudden cardiac (heart) death. Based on the available information and the autopsy findings it is likely that “stress” has 10 been a factor in this man’s death. However, it should be noted that ischaemic heart disease may lead to sudden death at any time.’ 5.10 The Coroner completed his report pursuant to the Coroner’s Act 1988, on 9 December 2002. Included in that report were the details of the inquest completed on 14 October 2002 at the District Court at Papakura by Coroner, Sam Herdson. 5.11 Under the heading ‘Causation’ it was concluded: ‘The issue of causation is difficult. It involves the vexed question as to whether the actions of the three youths caused Peter Wei’s death, i.e. did their actions in robbing and assaulting him cause him to have a heart attack? The crucial evidence is that of the Forensic Pathologist, Dr Simon Stables. His view is that the cause of death was (in ordinary language) a heart attack and that Peter Wei had narrowing of the arteries, which supply the heart with blood and oxygen. Dr Stables is also clear in his view that the external injuries – those from the assault by the youths – were not fatal, nor were there any fatal internal injuries.’ 5.12 The Coroner’s ultimate findings into the cause of death were set out as follows: ‘Ty Ming Wei aka Peter Wei, late of 296 Flatbush School Road, East Tamaki, Auckland, Businessman, Aged 46 years, died on 24 July 2001 at 533 Great South Road, Papatoetoe, as a result of ischaemic heart disease secondary to atherosclerotic coronary vascular disease. On the basis of the evidence presented, I am satisfied that I cannot exclude the possibility that Ty Ming Wei aka Peter Wei’s existing ischaemic heart disease could have led to his sudden death at any time.’ 5.13 In the Corporation’s submission the evidence both from the Pathologist and the Coroner is clear, the cause of the deceased’s death was a pre-existing heart condition. While there may have been other precipitating factors such as stress, the legislation does not take into account such factors.” [26] Ms Becroft referred to the October 2003 brief of evidence from Dr Clarke, Cardiologist, and responded: “(a) Mr Clarke gives clear expert evidence that the cause of the appellant’s death was a cardio-vascular episode; (b) Mr Clarke does not indicate that this cardio-vascular episode was either related to medical misadventure or to a work injury; (c) Although Mr Clarke gives evidence that stress during the assault may have given rise to the heart attack, he himself, concedes at paragraph 23 of the affidavit that there is no way of knowing whether the deceased would still be alive had the assault not occurred. In fact, Mr Clarke indicates that there is still 50% chance that the episode may have occurred without the assault; 11 (d) Mr Clarke does not provide any evidence in his brief which would suggest that the appellant ought to have cover pursuant to the 2001 legislation.” [27] In additional oral submissions at the hearing Ms Becroft, inter alia, emphasised that the respondent relies on the evidence from Dr Stables as being an expert in causation, who found that the cause of death was a pre-existing heart disease and that the deceased had previously had a small heart attack of which he would have been unaware. She submitted that the onus is on the appellant to show entitlement to cover on the balance of probabilities, but that Dr Clarke is only able to say that there was at least a 50% chance of Mr Wei being alive today if the assault had not occurred. She submitted that Dr Clarke’s opinions are merely theory and he was not present to examine the late Mr Wei, who was examined by ambulance officers and found to be in a satisfactory state but then suddenly died about 20 minutes later. [28] Overall, Ms Becroft submits that it is clear from the evidence of Dr Stables that the cause of the late Mr Wei’s death was his pre-existing systemic heart condition. [29] Mr Koya referred to the evidence of the late Mr Wei giving the appearance of a healthy person who did not show any symptoms of ischaemic heart disease, and noted when referring to the said assault at Mr Wei’s electronics business in Papatoetoe, that the members of the public who came to the late Mr Wei’s assistance called the Police who attended as well as ambulance staff, but that Mr Wei declined offers of medical treatment and stated that he was fine. He was described variously in terms such as “pale”, “shaken up”, “stunned” and other similar descriptions, but after attending him for five to ten minutes the ambulance staff left because they were satisfied that he did not appear to be in need of their services. However, the time between the robbery and the late Mr Wei’s death was just over half an hour. Without any indication or warning he simply collapsed while in the course of giving a statement to a Police Sergeant. [30] Mr Koya put it that if one accepts Dr Stables’ conclusions without further consideration, then there could be no argument that the cause of death was the heart disease suffered by the late Mr Wei. However, Mr Koya submits that Dr Stables does not qualify himself as a cardio-vascular specialist and was approaching his investigation with a view to establishing whether the attackers were criminally responsible for Mr Wei’s death, and that nowhere in his report has Dr Stables discussed the effect of sudden physical strain and stress as, Mr Koya put it, Mr Wei must have undoubtedly suffered, on the functions of the heart. [31] Mr Koya then referred in some detail to the evidence of Dr Clarke referred to above, and submitted that such evidence shows that it was the stress and strain of Mr Wei defending himself against his attackers which has, in fact, caused the heart attack suffered by the late Mr Wei. [32] From whatever perspective one looks at this appeal, the issue is one of causation. If the late Mr Wei’s death was caused “wholly or substantially” by disease, e.g. heart disease, then he is not covered for personal injury by virtue of s.26(2). Also, he is not covered for a cardiovascular episode unless it is a work related personal injury where the episode was caused by physical effort or physical strain, in performing his or her employment, that is abnormal in application or excessive in intensity for the person-- refer ss.26(3), 20(2)(j) and 28(3). 12 [33] Both counsel referred to McDonald v ARCIC [2002] NZAR 970 (H.C. per Panckhurst J). Ms Becroft submitted that it had limited applicability to the situation in this case, although it dealt with some relevant principles and indicated (she submitted) that the eggshell skull principle is not applicable in this type of case and nor is the “but for” test. Mr McDonald was a fireman who suffered a fall at his work but medical inspection revealed that his knees were becoming degenerative and that the fall was more the final straw rather than the whole cause of the degeneration. Mr McDonald experienced ongoing problems and was diagnosed with secondary osteoarthritis in both knees. Medical opinion was that his problems related to the osteoarthritis rather than a specific injury, that it was present prior to the accident and that the accident had merely accelerated the process to the extent that he could not go back to his former work. The crucial issue in that case was whether the general exclusion of cover for disease was avoided where an accident triggered the onset of the incapacitating symptoms. [34] The appellant attempted to advance an “acceleration rule” which focussed on whether in the absence of the accident the relevant disease would have remained dormant. Panckhurst J dismissed the appeal finding that the acceleration rule was similar to the “eggshell skull” argument and had no place under the Accident Rehabilitation and Compensation Insurance Act 1992 which was not concerned with whether there was some underlying condition or weakness which might accentuate the impact of an accident or prolong its effects. Panckhurst J emphasised that s.10 of that Act imposed a single test of whether the disease was the whole or substantial cause of injury. He held that cover was unavailable to Mr McDonald regardless of whether the accident triggered or accelerated the progression of the disease. At page 976, para 21, Panckhurst J stated: “[21] To my mind the core concept in ss.8 and 10 is that of “cover”. It is extended under the Act in relation to “personal injury”, another of the core concepts. In this instance the cover which Mr McDonald enjoyed from 1994 to 1999 was on the basis that his personal injury was caused by an accident: s.8(2)(a). There is no express definition of “caused”. However, s.10 indicates the test to the extent that exclusions from cover only become operative when the particular personal injury is “caused wholly or substantially by … ” the defined exclusion. It follows that in the present case for example the disease, osteoarthritis, excluded cover only when it was the whole or substantial cause of Mr McDonald’s personal injury. The impact of disease less than that, say at a minor or even moderate level, would not give rise to exclusion of cover. Put another way an accident remains causative until such time as disease (or other excluded conditions) is causative of the relevant injury to at least a substantial degree.” [35] As already indicated, Panckhurst J simply put the issue as that s.10 of the 1992 Act, in so far as it excluded (from cover under the Act) personal injury caused wholly or substantially by disease, “poses a single test: whether the disease is the whole or the substantial cause of the injury. If so, cover is unavailable, regardless that the accident triggered (or accelerated) the progression of the disease”. [36] It seems to me when I stand back and look at the overall medical evidence, that Mr Wei did suffer from pre-existing heart disease, because arteries to his heart had narrowed by the ageing process of atherosclerosis. The medical evidence shows that it 13 must have been the abrupt and harsh action of the assault on him by thieves which caused a massive increase in the adrenaline circulating through his heart, and that sudden increase or rush in adrenaline was excessive for the narrow and diseased arteries and caused Mr Wei’s death. Mr Koya submits that there can be no doubt that the sole cause of Mr Wei’s death was the attack on him, because the physical assault created an adrenaline rush which affects the brain and overloaded Mr Wei’s heart. Mr Koya put it that the artery in question was only narrowed and was not blocked. Mr Koya submitted that if the respondent refuses payment it must show that the narrowing of the arteries was the substantial cause of death but that, in fact, such narrowing was just a contributing factor. He put it that while, normally, the onus is on the claimant to show that in a case such as this the death was caused by the relevant injury, in terms of paragraph [21] (page 976--set out above) of the McDonald case the accident is causative unless it is shown that disease is causative, and that Dr Clarke has made it clear that it was the sudden rush of blood through the heart which caused the death. [37] Mr Koya put it that in the present case there was no heart disease, but merely a narrowed artery and not a clogged-up artery so that, he submitted, heart disease has not been shown to be the substantial cause of the accident or death. However, it seems to me that the medical evidence clearly shows that the deceased suffered from heart disease. [38] It seems to me that although the assault, and the consequential massive increase in circulation of adrenaline circulating through the late Mr Wei’s heart, triggered his death; the substantial cause of that sad consequence, in terms of s.26(2) of the 2001 Act, was the heart disease of atherosclerosis caused by the ageing process. It follows that, because that disease was the substantial cause of the death, cover is unavailable regardless that the assault triggered or accelerated the progression and a possible outcome of that disease. [39] Because of the outcome in this case pursuant to s.26(2) of the Act, it is not necessary to consider the effect of the separate exclusion under s.26(3) of the Act, which refers to s.20(2)(j) so that, in turn, we come to s.28(3) also set out above. In terms of s.28(3) there has been a cardio-vascular episode suffered by the late Mr Wei and the issue would then become whether “the episode is caused by physical effort or physical strain, in performing his or her employment, that is abnormal in application or excessive in intensity for the person”. [40] At all material times, the late Mr Wei was acting in the course of his employment, because upholding the security of one’s business must be acting in the course of one’s employment. He became involved in physical effort or physical strain in doing that, and there is the question whether it was “abnormal in application or excessive in intensity for the person”? I regard it as abnormal to need to wrestle with robbers. [41] Also, on the balance of probabilities, the fact that Mr Wei died while recovering from the episode probably shows that it was “excessive in intensity” for him; although it is probably unlikely that he would have died if his heart had been healthy. However, for s.28(3) to assist the appellant in this case, the cardio-vascular episode must have been “caused by physical effort or physical strain, in performing his or her employment, that is abnormal in application or excessive in intensity for the person.” A key word is “caused.” 14 I find that while the said physical effort or strain may have been the proximate, or nearest in time, cause of the episode, the substantial cause of the late Mr Wei’s death was heart disease. That is clear from the medical evidence which I have detailed above. I accept that the late Mr Wei’s act of defending himself against robbers triggered a rush of adrenaline and blood pumping through his heart to an extent which his heart could not cope with. That was because the arteries to his heart were diseased which, inter alia, had the effect of making a number of them too small so that his heart became starved of oxygen. At least one artery to the heart was blocked. The medical evidence terms the said atherosclerosis of Mr Wei as severe. [42] It follows from my reasoning that I find that the appellant’s estate is not entitled to cover for the tragic death of the late Mr Wei as described above. [43] Accordingly this appeal is hereby dismissed. _____________________________ Judge P F Barber District Court Judge WELLINGTON ai307-03.doc(ac)