Wells-Henderson v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 209 ACR 536/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN JUDI WELLS-HENDERSON Applican AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers Judgment: 24 July 2015 DECISION OF JUDGE A N MACLEAN ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal a decision of Judge Ongley dated 10 January 2013 when he dismissed the applicant's appeal which had the effect of upholding a decision of the respondent of 10 January 2012 declining to cover the appellant's post traumatic stress disorder (PTSD) on the grounds that it was not associated with a particular physical injury (cut foot on glass) but was caused by the surrounding circumstances or accumulation of events. [2] The issue therefore before Judge Ongley was whether that decision was correct. [3] There is no dispute between the parties as to the surrounding circumstances which by coincidence I am personally familiar with as the sentencing Judge in 2005 when the offender following conviction arising out of a most unpleasant series of frightening events, came before the District Court. [4] The applicant submits that a question of law arises which could be framed as: Whether for mental injury cover purposes, physical injury (however minor) sustained during a frightening event which has the effect of intensifying the traumatic mental experience, renders it artificial to sever the physical injury from the matrix of fact making up the traumatic experience? [5] Essentially the applicant's proposition is that Judge Ongley wrongly applied the law and that in particular regarded the fact that there was no direct assailant contact was material and that it was a case of as the appellant submits: A further artificial line being drawn as the arm and foot injuries were effectively sustained by the claimant defending herself during the assault i.e. walking over the glass to get to the door and also cutting her arm as she is batting the door panel at the intruder. [6] The proposition being advanced was put this way: In terms of causation of mental injury in these cases it is submitted that what is material is that there is a frightening environment which serves to magnify the traumatic nature of even a minor physical injury through feelings of vulnerability/life threat in an immediate "zone of peril". [7] An important issue in this application is whether what the applicant describes as a point of law is actually a question of fact as appeals on questions of fact are not permitted. [8] In his reserved judgment, Judge Ongley noted that the applicant had been targeted by a deranged man with a pre-occupation with a family related allegation which was totally without foundation. There was a series of cowardly and furtive burglaries and the combined emotional toll eventually was causative of a diagnosis of PTSD. [9] His Honour acknowledged the severe affect of those symptoms and that clearly "mental injury" in terms of's 27 had been established. [10] He was faced with a conflict between a psychiatric opinion from Dr Collier based on his opinion that "the physical assaults and the accumulated breakins are a necessary cause of her current condition" that contrasted with an opinion of Dr Fernando, who is a clinical psychologist, and His Honour preferred the evidence of Dr Fernando when focusing on what he saw as the essential factor that had to be established namely a direct causal link between the injury (the cuts) and the PTSD. [11] He carefully traversed a number of cases not so much by way of precedent but as examples of the approach of the District Court in this type of case namely Hornby v ACC' where Dobson J spoke of a direct causal link being required and that indirect causation was not sufficient on the crucial question of whether the mental injury was suffered because of the physical injuries. Against the background of that case, noting that a contributing cause can be a basis for cover if it is a significant and substantial contributing cause, he phrased the question before him as to "whether the minor injuries from glass fragments were a substantial contributing cause to the applicant's PTSD". [12] He also referred to Woodd' which was a case of a relatively minor injury in a context of mental shock at being tied up and threatened with a gun where the Court there stated that it was "artificial to sever the physical injuries from the matrix of fact making up the "assault"". [13] Also Geerders' on the point of distinguishing between indirect causation issues such as brooding and worry and direct causation issues of injury. [14] He compared the facts in Woodd with those in Comerford-Parker v ACC Gendall J and noted that as he put it in respect of Comerford-Parker and Woodd that: High Court Wellington CIV 2008-485-763, 10 September 2008 [2003] NZACC 54 2004] NZACC 188 High Court Wellington, CIV 2011-485-117, 26 May 2011 These two cases serve to illustrate the difficulties and claims for mental injury caused by frightening events connected with some degree of physical injury. [15] While acknowledging the terrifying nature of the whole situation with multiple causes of mental injury he noted that Dr Collier had not directly answered the question as to whether the physical injury was a material/necessary cause of the current mental condition and appeared to be in error as to the actual nature of the assaults involved as opposed to the physical injury. He commented further: Cover for mental injury would be something of a lottery if it could be justified by a minor injury connected with overwhelming mental trauma that is not caused by the injury itself. The legislation required direct causation and the test if not satisfied by an incidental physical injury at the time of the causative mental distress. [16] Ultimately His Honour had to make a factual decision in respect of the nature and extent of the causal connection and on the facts concluded that there was a difference from a case such as Woodd where the circumstances of the physical assault and injury were inextricably bound up with events. He observed that: The glass injury probably added to the trauma of suffering the invasion but was not conceivably capable of causing PTSD or contributing significantly as a cause of PTSD. [17] The law has been fairly clearly stated in the decision of the Court of Appeal in Harrild v Director of Proceedings and Cochrane v ACC. The Court said: I respectfully adopt the phrase results from as used in a Court of Appeal decision in Harrild as the appropriate mode of testing connection ... I am accordingly satisfied that the test as to whether the mental injury was suffered because of the physical injuries ... has been correctly addressed. The specific question of law posed on this further appeal is answered in the negative namely that a finding of indirect causation is not sufficient to satisfy the requirements for cover. 2003] NZLR 289 [2005] NZAR 193 [18] Comerford-Parker was a case where the appellant was within the "zone of peril" but in the High Court's decision which also involved PTSD it said: But Mr Miller's argument appears to be based on the proposition that the effect of injury (pain and prompting of memory) lead to the resulting mental injury. This may fail to distinguish between "results" of an injury and "effect" of it. The physical effects of the physical injury result from it. But conversely the mental injury already present, does not result from those physical effects. Results are not necessarily the same as "effects". There will be a causal connection between the physical injury and the alleged outcome (the PTSD) if as a matter of fact medical and other evidence, there is a resulting consequential logical connection between the PTSD and the physical injury. [19] As the respondent in its submissions correctly, in my view, submits, that demonstrates that the enquiry is primarily a factual one. [20] The reality is that this type of case is in most cases strongly dependent on the facts. [21] I agree with the submission that being a factual finding it was one that was reasonably open to the Judge on the available evidence and that there was no evidence to support the proposition that the physical injuries to the hand and foot in any caused the PTSD. [22] Accordingly it is my view that there is no arguable error of law and the application for leave to appeal is dismissed. Judge A N MacLean District Court Judge ACR 536-12-Wells-Henderson.doc(aw)