Clapp v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 315 ACR 327/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MARTIN CLAPP Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 July 2012 Appearances: John Miller for the Appellant A D Barnett for the Corporation Judgment; 24 September 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal 1] The Corporation gave Mr Clapp cover for a back injury suffered in July 2004 when he was moving furniture. He subsequently had the benefit of a range of entitlements and rehabilitation assistance from the Corporation. [2] Pain came to be very much a feature of Mr Clapp's problems and, in 2006, a consultant in rehabilitation medicine suggested that he now suffered from a chronic conversion disorder. MARTIN CLAPP V ACCIDENT COMPENSATION CORPORATION DC WN [2012] NZACC ACR 327/11 [31 July 2012] [3] Indeed when an orthopaedic surgeon expressed the view in November 2009 that Mr Clapp was disabled by a complex chronic pain syndrome that had now crossed into the psychiatric realm, he was referred on to that speciality, [4] Consequentially, and in December 2009, a psychiatrist reported a differential (between a conversion disorder and a pain disorder) diagnosis associated with psychological factors. [5] On 11 May 2010 the Corporation wrote to Mr Clapp to convey its determination of whether it would afford him cover for a mental injury because of a physical injury. [6] The advice it gave Mr Clapp was that such cover would not be afforded him because, in the Corporation's view, while he had a conversion disorder that had not been caused by the physical injury suffered back in July 2004. [7] Mr Clapp applied for a review of the Corporation's refusal of cover for a mental injury and the accompanying suspension of entitlements under s 117(1). However he was unsuccessful on that application and so has appealed. Background [8] I take the following from the 7 November 2009 report of Mr Peter Welsh, orthopaedic surgeon, as an introductory outline of the background facts: Martin incurred a strain injury to his back assisting in a home move on 10 July 2004. He tripped as he walked backwards carrying an item of furniture, bent in an awkward posture to prevent hitting a glass door, he wrenched his back and was immediately seized by pain across the low back referred into the right leg, The development of sciatica saw him referred to Mr David Brougham in early August 2004, at which time he was seen to be severely restricted and unable to stand straight. He had sharp pain extending down both legs, he had had no relief from chiropractic treatment, and on examination was unable to straighten up, had undue tenderness in the mid and low back and great tightness in both legs. He was also seen to have a rotator cuff strain injury to his shoulder earlier in March the same year Some three weeks later, he was still seen to be grossly restricted by back pain, the shoulder too still troubling him. Ultrasound study of the shoulder showed only some bursitis. No injury to the cuff itself. An MRI scan of the lumbar spine revealed damage disk at LS/SI with a right sided L5/1 disc prolapse. Mr Love, to whom Martin was subsequently referred, did not feel at that time that Martin displayed any abnormal illness behaviour or psycho-social overload features. Accordingly surgery was undertaken on 29 November 2004, a right L5/SI discectomy performed with, at surgery, only a small disc bulge identified. Martin's subsequent course saw some improvement in the sciatic component of his pain but continuing mechanical back pain. With continuing back pain unresponsive to physiotherapy rehab Martin was further referred for review with Mr Chris Hoffman in July 2005. His clinical picture at that time was dominated by disability from chronic pain. In addition to pain in the back and referred pain into the right leg that interfered with most activities, he described to Mr Hoffman pain and aching, burning, stabbing pain in both the armpits, the neck, the shoulder girdle, the thoracic spine, the abdomen and down the legs to the knees. A total body pain picture, inconsistent with simply complaint referable to a disc injury in the lumbar spine. There was recognised a mechanical stimulus inasmuch as earlier discography had confirmed the L5/SI segment to be strongly symptomatic, However referred leg pain ruled out the possibility of management with disc replacement and the features of chronic pain dysfunction dissuaded Mr Hoffman from proceeding with the alternative of a spine fusion to be considered only after some features of pain disability were brought under better control. All reviews to that time, including Dr W E D Turner, Mr Love, and Mr Hoffman, recognised there was a mechanical injury effect ongoing but the features of chronic pain dysfunction rendered an unpredictability to benefit from further intervention. Over the years since Martin had been involved in comprehensive pain management initially in November 2005, with Dr Frank Thomas, Tom Nest, and Belinda G Functional rehab, lumbar epidural steroid injection, pain medication with Tramadol and Amitriptyline in the early stages, all had little benefit. There was progression to more powerful drugs with DHC, the opioids having little effect, but have been a developing dependence on medication, right through to the opioids upon which he now is clearly dependent, In October 2006 Dr Xiong recognised that there had been a severe progression of the state of limitation, more than just one of a chronic pain syndrome, there was complaint of weakness of the whole body, crutch walking dependency, non anatomic numbness, that psychological overlay and the clinical manifestations projected represented a form of chronic conversion disorder. That description would be seen to summarise the situation currently represented. . .. Martin had previous skeletal injuries, had a surgery to his left shoulder, with injury to his left wrist, requiring surgery and after such was able to return to work as a filleter in a timber plant. He had in all reality made excellent recovery from those injuries until strain injury to his right shoulder in March and then of course his back injury which has seen a catastrophic devolution of his coping capability. [9] As will have been seen Mr Welsh mentions the involvement of a Dr Xiong. He had seen Mr Clapp in October 2006 for the purposes of an IMA report, Amongst the matters he noted, and which I see as of significance for the present purpose, were that: Mr Clapp had been very disappointed with the (15/S1 discectomy) surgical outcome and had requested a second opinion. That was obtained from Mr Hoffman but he decided that no further surgery should be performed. It was quite clear that Mr Clapp was suffering from a chronic pain syndrome representing the extreme end of disabled pain, one unfortunately falling into the group of failed back surgery syndrome, There was no clear neurological compromise such as could explain his symptoms of weakness in the left leg and sensory disturbance to both legs, and treatment and rehabilitation would remain a major challenge, He was clearly disabled and truly impaired with a strong psychological overlay which, alongside the clinical manifestations, represented a form of chronic conversion order with the impairments of chronic pain and weakness - and sensory changes - incompatible with any recognisably neurological deficits, [10] That summary of his advice brings me back to Mr Welsh who went on in his report to say that: Martin Clapp presents as an individual disabled by a complex chronic pain syndrome. I would concur with Dr Xiong that this is crossed over into the area of psychiatric disorder. The state of disability displayed, the state of disability which clearly Martin believes, has indeed crossed into the realm of a conversion disorder, A psychiatric review should be undertaken. [11] He added this: From the orthopaedic viewpoint, while mechanical back pain arising from disc injury in an accident in 2004 has been a precipitator of pain experience which has morphed into a chronic pain syndrome and conversion disorder, there is no benefit to be accrued from any type of intervention in the spine further. This was well recognised by Mr Hoffman in July 2005. At that time the seeds of this chronic pain process were well established, having been noted earlier by Dr W E D Turner, and surgery under such circumstances would be doomed to failure. [12] Mr Welsh then concluded his report in the clearest of terms saying; The key lies here in unlocking the central processes which I believe requires psychiatric support. There are most certainly no other rehab endeavours going to make the slightest difference until this key component is addressed. [13] Dr Bill Gordon, consultant psychiatrist, reported on 19 December 2009. In the course of his report he noted that: Mr Clapp stated that he had continued to experience a whole range of different pains in his body, little alleviated by the taking of large quantities of various drugs. Prior to the July 2004 accident Mr Clapp had been in a variety of accidents and scrapes, some relatively serious physically speaking and involving surgeries. But, as he told the doctor, he had worked hard at getting himself back into shape and fit again saying with some sense of pride that he was able to achieve a reasonable recovery from them all. He gave the doctor a whole series of reasons why he now felt the way he did, including that he had not been managed properly after his accident (he considered that he should have had a second, fusion operation as he claimed was promised) and that he could not understand why he had been sent off to unfruitful rehabilitation. He was angry with the Corporation for a number of reasons including on account his perception that it had been niggardly in the provision of entitlements and generally non-responsive to his needs; and now He moved around the house using crutches and was looking forward to when he would be able to get a wheelchair. [14] Referring to his clinical examination Dr Gordon noted this: His description of his pain was somewhat generalised in the sense that it covered large parts of his frame, and was not confined merely to his back or legs. There was a sense that the pain was overwhelming him, and he was unable to have much control in what he experienced. There was nothing to suggest the presence of severe pathology, such as delusional thinking or paranoid ideas. His perception was obviously coloured by his subjective experience of pain, which appeared to totally preoccupy him, and exclude much of the rest of the world from his thoughts. From a psychiatric point of view there was a differential diagnosis between conversion order and pain disorder associated with psychological factors. It appeared that the pain was outside the normal bounds one would expect from the injury he sustained. As to the psychological factors the doctor said: I believe the psychological component relates to his sense of injustice, his sense of not being treated appropriately, and his sense of grievance, aimed particularly at ACC for their findings in his eyes, This has, I believe, done much to fuel his strong sense of frustration and resentment. [15] Under the heading "Comment" Dr Gordon wrote: It is difficult to understand how a man who was able to overcome previous injuries with determination and perseverance, on this occasion seems to have succumbed. There is obviously a considerable amount of frustration in him, both at his own state and at what he sees as the findings of other people to rectify his condition. Undoubtedly anger fuels much of his neurotic illness and enhances the quality and extension of his pain systems to large parts of his body, which is completely outside the realm of any neurological pain basis. [16] Then - and now very much heading in the direction of the issue before the Court - he went on: With regard to the causation of his Chronic Conversion Disorder, it is difficult to understand the process that has led to the development of this Axis I diagnosis. It is certainly hard to believe that the symptom pattern is a direct result of physical injury or whether in fact, and more likely, that other indirect factors may well have operated. The process I believe is that he developed pain following his LS/S1 disc injury, and that his expectation of treatment for this, an (indirect), issue fuelled the development of his Conversion Disorder. Hence his sense of frustration that, in his eyes, his illness was not managed properly and he was not given a fusion operation as originally he considered he had been promised, and a number of reasons that he feels irate with ACC. I believe all of these factors have operated and this is probably the explanation for the development of a Conversion Disorder. As stated previously, there is a strong element of anger and frustration in the emotional aspect to this illness. (Emphasis added) [17] Doing his obvious best to come up with something potentially useful and positive as he concluded his report, Dr Gordon said that should the Corporation accept the idea that this was a mental condition secondary to his original back injury then he thought it would be worthwhile reinstituting psychological intervention along cognitive behavioural lines. But he then expressed uncertainty as to whether "in view of the organic qualities to his presentation" a clinical psychologist would find Mr Clapp an easy task, [18] The most recent psychiatric assessments that are before the Court were conducted in November 2010 by the Tararua Community Mental Health Services at Dannevirke and one of those involved in the assessment process was Dr Aston, a consultant psychiatrist, [19] Dr Aston picked up on the "strong theme about (Mr Clapp) considering he had been let down by people in the past including ACC". In his concluding remarks he noted the most pressing problem to be hyperarousal with anxiety, panic and possible additional Akathisia'. He set out a plan for revision of medication. [20] Dr Aston saw Mr Clapp again on 30 November 2010, 21 days after the first meeting. This time Mr Clapp presented in more composed fashion although there Akathisia = inner restlessness resulting in inability to remain motionless. was the rehearsal of an ongoing sense of injustice at not being heard by the Corporation and others. [21] Here the doctor said that; Rather than regurgitating the detail of this I will comment as I did to Martin on the rather circular obsessional tendencies he has with regards to issues and past senses of injustice. Whilst there is a strong focus on ACC there did seem to be attendance to focus on others. He allowed me to explain a view of Conversion Disorder. When he first gave me in his own words ... what Conversion Disorder meant it bore no resemblance to the clinical state that I then described to him. I gave him a simple message about the obvious emotionality that he displays and how such emotional drives can convert into physical symptoms. In his case based on previous psychiatrist assessment the view is held that some of his pains were of a conversion nature. However he is indicating that he has since had a number of injuries such as in the shoulders and that using crutches all the time has compounded some of the original problems caused by the first back injury. [22] In concluding, Dr Aston wrote: We agreed that for the present my diagnosis would be of an Anxiety Disorder with an obsessional tendency, The Conversion Disorder was previously diagnosed and probably has validity. From an objective point of view I think it is the rapid emotional changes and the consequence distress and circular obsessional style thinking that is likely to be quite disabling to Martin. Whilst he can understand that concept it does not prevent him from swiftly coming back to seeking some justice (though) against those he perceives have let him down over a long period of time... [23] The last report is from Dr Hanekom, obviously Mr Clapp's general practitioner, who wrote to the Corporation on 13 January 2011 to say; Martin has been dealing with back injury sequela including oral medication, differential spinal injections and surgery for more than six years now, before which he was a fit and active young man. It is in my opinion feasible that he could suffer from a low affect disorder relating to chronic pain and frustration associated with the accident. I do not have any medical notes on file suggesting a psychiatric illness before the accident. Reading Dr Bill Gordon's report, I have to agree that there is a strong case to be made that the conditions of his mental health is secondary to his original back injury. I have to point out that the recent deterioration in his mental health status - leading to the referral to the Community Mental Health, has got little to do with his back injury. This is in my opinion on a separate issue, caused by bizarre circumstances relating to inter-relationship issues, rather than is ongoing back pain. Case for Mr Clapp [24] As Mr Miller noted, it was not in dispute that Mr Clapp had a mental injury within the meaning of's 27 of the Act nor either that he did not have any such prior to the July 2004 physical injury for which he has cover. [25] The Corporation had rejected cover for mental injury on the basis that, on the evidence, the test set out in s 26(1)(c) of "a mental injury suffered by a person because of physical injuries suffered by the person" had not been met, [26] Mr Miller set out to argue the contrary. In doing so he first of all pointed out that the present case differed from Hornby inasmuch as Ms Hornby had pre-existing depression which had been reignited by the physical injury event and its consequences. [27] Thus in Hornby there could be no cover because Ms Hornby's depression had nothing to do with the injury. It was not a case of susceptibility or eggshell skull. It was one where the appellant had a condition which was not brought on by the accident (in which she had broken her arm). The Court of Appeal had noted that: Even on the approach taken by the appellant's doctor ... the break to her arm has made her symptoms worse but has not caused her depression, [28] Mr Miller then submitted (in "but for" fashion) that had the physical injury in the present case not occurred then the mental injury would not have arisen. Here, he said, the medical evidence was that the physical injuries had evolved into a chronic pain disorder which had crossed over into the realm of a conversion disorder, both recognised as DSM IV mental injuries. [29] Setting out to meet what was obviously to come in the Corporation's argument, he contended that the fact that the "progress" of the mental injury may have been contributed to by a sense of injustice and grievance at his treatment from 2 Hornby y ACC [2009] NZCA 576. ACC did not mean that the mental injury was not suffered 'because of' the physical injuries, for the precipitating event for the former had been the latter, [30] He argued that there would always be some number of perpetuating factors featuring in such cases that 'collaborated', as it were, to make things worse; for example a sense of loss of health through incapacity and pain, loss of independence, and consequential effects on family, employment, relationships etc. But that did not mean that the mental injury could not meet the test that it was suffered 'because of" the physical injury events. [31] Mr Miller drew attention to Brider v Hughes , In that case the Court had observed (in the context of the then extant version of the accident compensation legislation) this - . "consequence" is little different from "result" and often the two words may be used interchangeably. It may be said, without stretching normal usage, that a consequence of the infection of A by medical misadventure was the transmission of that infection to B; just as it may be said that B's condition results from that which was done to A. ... In the District Court decision under appeal, the Court relied on the Latin root of the word as given in the Shorter Oxford English Dictionary to conclude that it connotes "follows closely" a reference to the last two syllables. With respect, the examples given in that dictionary show that, whatever the root meanings, close proximity is not a prerequisite for the use of the word today*. [32] Mr Miller obviously adhered to this case because: Section 26(1)(c), using similar but not quite the same language, refers to "mental injury suffered by a person because of physical injury suffered by the person"; he then arguing that Brider - Added weight to his legal argument that recognition of connection was not constrained by ideas of close proximity, especially since - Brider & Hughes v Accident Rehabilitation and Compensation Insurance Corporation, HC Wellington AP 120/98, judgment 3 December 1998 (Full Court, coram Doogue and Durie JJ). It may be observed - see [35] below - that in Hornby the Court of Appeal obviously felt free to use 'results from' when the provision in question speaks of 'because of'. As was observed of 'consequence' and 'result' in Brider, 'because of' was - bereft of (any) qualifiers ... written in like "direct consequence" or "foreseeable consequence", and nor could they be implied. ... [33] As to Mr Clapp's personal history, he added that one could identify a marked contrast (mentioned by the medical people) between how, prior to the subject physical injuries, the appellant had energetically overcome a range of vicissitudes and the fashion in which he had succumbed following the now pertinent accident event. [34] Insofar as (in the High Court in Hornby at [29]) Dobson J had said that - 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 - he argued that this must be read as a conclusion pertinent in law to the given facts. That that was so surely apparent when the case was before the Court of Appeal and the wider causation issue was left open for later debate and adjudication; see [56] below. [35] Mr Miller argued that - at least with hindsight - the result in Hornby was inevitable given the Court of Appeal's positive recognition of such as this from the judgment of Dobson J: [28] Here, the preferred medical evidence treated the appellant's pre-existing depression as asymptomatic at the time of her physical injury in March 2000. The accident triggered her pre-existing mental injury resulting in it becoming symptomatic. However, that is not sufficient to establish causation, because the mental injury does not result from the physical injury suffered in the accident. To make such a finding is to ignore her pre-disposition to that consequence, arising from the mental injury which she had previously suffered from. (Emphasis added) (36] Mr Miller invited the Court to approach this case robustly (in Ambros" terms) with a recognition of the clear availability, so he urged, of expert testimony supporting the conclusion that the conversion disorder was suffered because of - that it resulted from - the physical injuries. Case for Corporation [37] Mr Barnett, in making his submissions, very fairly acknowledged the sad reality that Mr Clapp's disability had deteriorated to the point that he had weakness of his whole body and was now reliant on crutches to walk. [38] Here he highlighted the observation of Dr Xiong at the end of October 2006 that; Based on today's assessment it is clearly evident that he is clearly disabled and very impaired. There is a strong psychological overlay and the clinical manifestations represent a form of Chronic Conversion Disorder with impairment of chronic pain and weakness [39] Mr Welsh, given he reported in November 2009, had thus more recently said: Mr Clapp presents as an individual disabled by Complex Chronic Pain Syndrome. I would concur with Dr Xiong that this has crossed over into the area of psychiatric disorder. The state of disability displayed, the state of disability which clearly Mr Clapp believes, has indeed crossed into the realm of a Conversion Order. A psychiatric review should be undertaken. [40] Counsel noted that Dr Gordon (who thus became involved) thought a pain disorder diagnosis was a possibility but then wrote: However, in terms of Conversion Disorder, it seems that his pain is outside the normal bounds one would expect from the injury he sustained, and I believe the psychological component relates to a sense of injustice, his sense of not being treated appropriately and his sense of grievance, and particularly at ACC for their failings in his eyes. This has, I believe, done much to fuel his strong sense of frustration and resentment. [41] Mr Barnett particularly pointed to this from Dr Gordon's advices: With regard to the causation of this Chronic Conversion Disorder, it is difficult to understand the process that has led to the development of the See [58] below. Axis I diagnosis. It is certainly hard to believe that the symptom pattern is a direct result of physical injury or whether in fact, and more likely, that other indirect factors may well have operated. The process I believe is that he developed pain following his L5/SI disc injury and that his expectation of treatment for this, an indirect issue, fuelled the development of his Conversion Order (Emphasis added) [42] I observe at this point that it is indeed plain that Mr Clapp earnestly harbours the self conviction, one not supported by the orthopaedic profession, that he needs a further orthopaedic surgery intervention because that would give him a cure. [43] Counsel noted that Mr Clapp's general practitioner had referred him to Dr Aston and his team on behalf of whom, on 30 November 2010, that doctor wrote that: We agreed that for the present my diagnosis would be of an Anxiety Disorder with an obsessional tendency. The Conversion Order was previously diagnosed and probably has validity. From an objective point of view I think it is the rapid emotional changes and the consequent distress and circular obsessional style thinking that is likely to be quite disabling to Martin. Whilst he can understand that concept it does not prevent him from swiftly coming back to seeking some justice although against those who he perceives have let him down over a long period of time. I stress that we may not be able to put that right and keep bringing him back to what we can do now. [44] As to what is said there about an Anxiety Disorder diagnosis, there is an obvious connection to be made with what the general practitioner later wrote to the Corporation being: I have to point out that the recent deterioration of his mental health status - leading to the referral to Community Mental Health, has got little to do with his back injury. This is in my opinion a separate issue caused by bizarre circumstances relating to interrelationship issues rather than his ongoing back pain. [45] Moving on from this evidential rehearsal, Mr Barnett turned to and developed (with concessions where they were due) these arguments: It was indisputable that medical opinion had identified disabling symptoms going beyond those explicable by the physical pathology; Of which there was no illuminating evidence before the Court. Mr Clapp had no pre-existing mental injury so this could not be called an aggravation case; but It remained incumbent upon Mr Clapp to establish causation - to demonstrate on the balance of probabilities that his mental injury was one he suffered because of the physical injuries - that it was one that resulted from them; That Mr Miller had referred to a "but for" approach was to reveal (in evidential, leave aside legal) terms a flawed approach as the medical evidence stopped short of establishing that had the physical injury not occurred the mental injury would not have been suffered; Dr Gordon had in fact said that the psychological component of the Conversion Disorder here (what was operative in giving rise to it) was "a sense of injustice, his sense of not being treated appropriately and his sense of grievance, and particularly at ACC for their failings in his eyes"; Dr Aston's primary diagnosis (as of November 2010) of an Anxiety Disorder with obsessional tendencies exemplified a similar dynamic and thus went to explain the genesis of the current (at the time Dr Aston saw him) condition of Mr Clapp, for Dr Aston had referred to "rapid emotional changes and the consequent distress and circular obsessional style of thinking that is disabling and a sense that he has been let down"; and The general practitioner had spoken of his patient's then state as one little to do with the back injury anyway but rather (to rehearse what has been recorded before) one "caused by bizarre circumstances ... rather than ongoing back pain". [46] At this point Mr Barnett approached his ultimate submission which was prefaced by this: There could be a temptation to approach the case as one of multiple causation, to say that the appellant's sense of injustice, grievance or obsessional thinking was a cause but so also was a physical injury, But that, he argued, was not a conclusion that was available on the evidence. [47] Then, revisiting ground already covered, he said: Likewise the temptation might be to argue (as implicitly did counsel for Mr Clapp) that "but for" the physical the mental injury would not have occurred. [48] But that, he submitted, would be a flawed approach because: While the back injury may have provided the environment for the generation of Mr Clapp's sense of injustice or grievance (which in turn was the cause or source of his Conversion Disorder), that environment was not itself the cause; and here he relied upon Price Waterhouse' and the observation in that case that - There is a material, indeed a crucial, difference between causing a loss and providing the opportunity for its occurrence - And anyway, and in the end, he said; It was for Mr Clapp to prove that he had suffered the mental injury because of the physical injury (or at least that it was a real and significant causal element) and the medical evidence did not tip the scales in favour of that conclusion; To the contrary the burden of that evidence was that the physical injury was not the cause of what had befallen Mr Clapp in the form of a Conversion Disorder. Price Waterhouse v Kahn [2003] 3 NZLR 39 (CA) at [28]. Discussion [49] The issue is whether in this case the appellant, Mr Clapp, has a mental injury suffered because of physical injury suffered by him. [50] I first of all endorse, with respect, the observation of Judge Ongley in Griffiths at [18] that; A physical injury need not be the sole cause, but in line with the usual principles of causation, it has to be a real and significant cause. [51] The same judge noted that each case required to be considered on its own facts, which proposition too I would obviously endorse, [52] In Hornby the issue was the meaning and effect, as regards the suffering of a mental injury, to be given to the expression "because of physical injuries" in s 26. [53] In that case the focus was on the impact of the particular appellant's pre-existing mental condition (anxiety and depression) on her entitlement to cover for mental injury. She had broken her left arm when getting out of a car and had not recovered well. [54] Cover had been afforded her in relation to her physical injuries, But just short of four years after the accident she sought cover for mental injury arising from the break. Her claim had been declined on the basis that her mental injury was not consequential on the physical injuries. [55] The opposing arguments were summarised by the Court of Appeal in this way: [32] The appellant argues that this was a case of multiple causes. The appropriate approach to that was to apply the common law "but for" test as the appellant says is envisaged by Ambros, Further, the appellant says that the aggravation causes an effect, namely, to make things worse. For the appellant, Mr Beck submits that the appropriate question to ask is, "what effect did this accident have?" ACC v Griffiths, DC Wellington, 8/4/09, 19/5/09 Mr Beck also submits that the depression was not present because there were no symptoms. He sees this as a case of susceptibility or "eggshell skull". Further, Mr Beck argues that it was not inevitable that the mental injury would have happened but for the accident, Finally, the appellant suggests that a generous approach to the question of causation better reflects the social contract embodied in the Accident Compensation legislation and the policy of the Act. [33] For the Corporation, Mr Corkill QC submits that the statutory language requires a direct and substantial link between the injury and the mental health issues. Mr Corkill argues that the effect of Ambros is that the Court should stick with the statutory language. His concern about adopting a material contribution test of the sort proposed by the appellant is that this could be anything more than de minimis, In Mr Corkill's submission, that is not sufficient in the Accident Compensation context, [56] Then under the heading "Discussion" the Court of Appeal said this: [34] This Court in granting leave said that there were analytically three possible situations that might arise'. First, mental injury arising out of an accident and the resultant physical injuries. Secondly, a pre-existing mental condition may be aggravated somehow, solely because of the physical injuries, Thirdly, the physical injuries may have been a contributing cause, although not the only contributing factor to, the resurgence of a prior mental affliction. (We note here that Mr Corkill advised that the Corporation accepted only that the first category came within s 26.) [35] The Court considered this case was in the third category and saw that as the more problematic scenario in terms of causation. However, having had the opportunity for a closer examination of the facts, we have concluded that this is not a multiple causes case, [36] The first point to note is that the appellant accepts that, given the limited nature of the right of appeal to this Court, we must proceed on the basis of the facts as found by Judge Cadenhead, That means that the appeal must be considered against the background of the rejection of her claim, based on Dr Wisely's report, that she suffered from PTSD. If that diagnosis had been accepted, it appears that the position in terms of cover would have been different. On the facts, as found in the District Court However, the "mental injury" in issue is her depression. The evidence is that the appellant suffered from depression and that, over a period, it was possible that things would happen that might reactivate the condition, As the High Court Judge put it in the leave decision: [10] ... on the most literal of "but for" tests, the episode of the relevant mental disorder recognised in the appellant on the first occasion after she broke her arm may not have occurred at that time and in the circumstances it did, if she had not broken her arm. However, that does not constitute the breaking of the arm a "cause" when Meaning, obviously, in the given circumstances. any one of a range of sources of stress might equally have produced the extent of symptoms of a further episode of a recurring mental disorder that ensued for her. [11] In other words, where the appellant already suffered from the mental disorder with the extent of its symptoms being episodic, a particular physical injury may provoke a change in the extent to which the symptoms are demonstrated, but not constitute "a cause" of the disorder. [37] We agree with Dobson J's analysis. Essentially, the appellant does not get cover because her depression has nothing to do with the injury. This is not a case of susceptibility or eggshell skull but, rather, one where the appellant has a condition which was not brought on by the accident. Even on the approach taken by the appellant's doctor, Dr Mackenzie, the break to her arm has made her symptoms worse but has not caused her depression, It may be relevant, although the point was not addressed by either Dr Wisely or Dr Stoner, that at the time of the accident the appellant was still being prescribed anti-depressant medication which presumably may have impacted on the extent to which she presented with those symptoms at that time. [38] That is sufficient to dispose of the appeal. We add that we did hear argument on what the tests for causation in these cases should be, That turns to some extent on the scope of Ambros, However, we do not consider this an appropriate case to resolve that question given the factual underpinning for the argument is absent, We appreciate the desire of the parties to get a steer from this Court on this but the fact that s 163(4) of the Act states that the decision of this Court on an appeal is final indicates that a cautious approach should be adopted. (Emphasis added) [57] As has been identified, in Hornby the appellant already suffered from a major depressive disorder when she had her accident. Thus, as it was held, her injuries had not caused her depression. [58] I am conscious that at [67] of Ambros" the Court of Appeal said this: The different methodology used under the legal method means that a Court's assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has allowed the Court to draw robust inferences of causation in some cases of uncertainty... However a court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture... Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based 10 ACC v Ambros [2007] NZCA 304. on the whole of the lay, medical and statistical evidence, and not be limited to expert witness evidence... (Emphasis added) [59] Further points are then made in the succeeding paragraphs [68]-[70]. First, that the judge cannot draw a robust inference of causation in cases where medical science says that there is no possible connection between the events and the injury or death; secondly, that the question of causation is for the Court to decide and that it could in some cases be decided in favour of a claimant even where the medical evidence is only prepared to acknowledge a possible connection; and thirdly that the generous and unniggardly approach referred to in Harrild" may support the drawing of "robust" inferences in individual cases. [60] Lastly, and obviously in an endeavour to avoid risk of misunderstanding, the Court said that: It must, however, always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a court to draw even a robust inference on causation. Risk of causation does not suffice, [61] I read Ambros - which is of course a case on causation in the ACC context - as offering much support (in the particular context of legislation which is in the nature of a social contract") for a commonsense approach to causation and thus to what is to be made of's 26's relevant to mental injury use of 'because of", [62] I further note that in the course of a very thoughtful discussion of causation in common law terms Fleming" says at 230: ... A commonsense approach used to determine causation in a given case is not a rudderless concept that permits mere non-analytical assertion. Rather it gives full expression to the evaluationature of the fact finding exercise, which itself must be logical but, and this is fundamental, does so within a specific legal context. ... (63] On the following page Fleming discusses the problems of a "but for" approach in cases of multiple causes (where actually or arguably arising) saying that: 2 Harrild v Director of Proceedings [2003] 3 NZLR 289 at [19] (CA). 3 See s 3. Fleming's The Law of Torts 10" Edn. ... adherents of the "but for" test as the exclusive test of causation recognise that in this exceptional case the only answer is to treat each wrongful act as an independent cause for legal purposes. ... [64] The present is not a case where, as with Hornby, there was clear evidence of a pre-existing mental health problem (in that case depression and anxiety). I recognise, for example, the observation of Mr Welsh (see [8] above) in reference to earlier physical injuries suffered by Mr Clapp that; He had in all reality made excellent recovery from those injuries until strain injury to his right shoulder in March and then of course his back injury which has seen a catastrophic devolution of his coping capability. [65] I also recognise (as, for example, was mentioned by Dr Xiong - see [9] above) that Mr Clapp has exhibited a symptomology for which there is no clear evidence of neurological compromise but yet is clearly disabled and very impaired. Mr Welsh and Dr Xiong concurred that there had been a cross-over into the area of psychiatric disorder. But, of course neither Mr Welsh nor, to my appreciation, Dr Xiong is a specialist in that area, so I need turn to the specialist evidence. [66] My principal focus in a case like this must be on the views of Dr Gordon (see [13]-[17] above) who, as one particularly competent in this area, came to the view that there was a differential diagnosis between a conversion order and pain disorder associated with psychological factors; that with an emphasis on the significance of the former being outside the normal bounds one would expect from the injuries he sustained. [67] Importantly in my view he said; I believe the psychological component relates to a sense of injustice, his sense of not being treated appropriately, and a sense of grievance, aimed particularly at ACC for their findings in his eyes. This has, I believe, done much to fuel his strong sense of frustration and resentment. [68] As was set out earlier, but is worthy of rehearsal here, he also under the heading "Comment" had said: It is difficult to understand how a man who is able to overcome previous injuries with determination and perseverance, on this occasion seems to have succumbed. There is obviously a considerable amount of frustration in him, both at his own state and at what he sees as the findings of other people to rectify his condition. Undoubtedly anger fuels much of his neurotic illness and enhances the quality and extension of his pain systems to large parts of his body, which is completely outside of any neurological pain basis. (Emphasis added) [69] It is indeed puzzling that Mr Welsh, a man who had previously shown the capacity to recover very well from physical injuries, should have succumbed in the present circumstances in so different a fashion. [70] But in light of such as Dr Gordon's just mentioned observations , there is (as I see it) an obvious enough explanation for the difference, namely that responsibility for that to which Mr Clapp has now succumbed rests with his self-conviction that further surgery is required, with his frustration at the refusal of the medical profession to accept that that is the case, and with his anger at the Corporation for the way in which (according to his lights) he has been treated. One can reasonably deduce that no such combination of circumstances had arisen on the occasion of, or following upon, any earlier injury. [71] That then brings me back to something else that Dr Gordon said which, although it is already set out in full at [16] above, I will now repeat; With regard to the causation of his Chronic Conversion Disorder, it is difficult to understand the process that has led to the development of this Axis I diagnosis. It is certainly hard to believe that the symptom pattern is a direct result of physical injury or whether in fact, and more likely, that other indirect factors may well have operated. The process I believe is that he developed pain following his L5/S1 disc injury, and that his expectation of treatment for this, an (indirect), issue fuelled the development of his Conversion Disorder. Hence his sense of frustration that, in his eyes, his illness was not managed properly and he was not given a fusion operation as originally he considered he had been promised, and a number of reasons that he feels irate with ACC. I believe all of these factors have operated and this is probably the explanation for the development of a Conversion Disorder. As stated previously, there is a strong element of anger and frustration in the emotional aspect to this illness. [72] Then of course there is Dr Aston. He shared with his team (at the later point in time when they were dealing with Mr Clapp) the view that Mr Clapp was currently suffering from an Anxiety Disorder with an obsessional tendency but noted that a Conversion Order had previously been diagnosed and probably had validity. 14 See also, c.g., [16] above, [73] I count it significant here that Dr Hanekom, Mr Clapp's general practitioner, had written to the Corporation to express the view that the recent deterioration in his patient's mental health status - that which led to the reference to Dr Aston et al - had little to do with his back injury but rather, so he proposed, was caused by bizarre circumstances relating to interrelationship issues. In other words it may reasonably be said that the recognition of Anxiety Disorder is, for the present purpose, not directly in point, [74] Clearly in this case the truly expert evidence in the circumstances (that of Dr Gordon) is entirely supportive of the case being one of a Conversion Disorder. [75] Equally clearly - for I count Dr Gordon's assessment to have been very thorough and well considered - in expressing that view, Dr Gordon has identified a set of elements coincidentally arising in the context of the physical injuries in question that may properly be recognised as the actual cause of the conversion disorder. [76] This case is quite different from Hornby where a pre-existing depressive tendency had been reignited by the physical injury event. But, Mr Miller's contrary submission notwithstanding, I do not accept that that state of affairs renders irrelevant the answer Dobson J gave in the High Court at [29] when he said: 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. [77] Rather do I count that answer of some pertinence here because it points in the direction of what, in my consideration, is the proper answer to the present case, [78] As foreshadowed in [75] above, I see the present case as one where the observation in Price Waterhouse that ~ There is a material, indeed a crucial, difference between causing a loss and providing the opportunity for its occurrence is of even greater pertinence. [79] I say that because the evidence here falls well short of making a case for the conclusion, on the balance of probabilities, that Mr Clapp's mental injury (the fact of which is undoubted) has been suffered by him "because of" the physical injury that he suffered. [80] In fact, as I see it, there is no evidence that in any - let alone a real and significant - way the physical injury itself was causative" of the mental injury. [81] Rather is it the case that the factors identified by Dr Gordon created or provided, as was Mr Barnett's submission, an environment for the generation of Mr Clapp's senses of frustration, of injustice and of more generalised grievance. [82] Those, along with the associated anger, were what was responsible for the development of the conversion disorder rather than it being the case that there was any meaningful input from the injuries per se. [83] Thus I am led to the conclusion that Mr Clapp's mental injury, that which he has undoubtedly suffered, is not one that he has suffered because of the physical injuries. Result [84] In light of the way I thus see this case the appeal must fail, and so it is dismissed. Roderick Joyce QC District Court Judge 14 And here I still have in mind Brider as cited at [31] above.