PETER FRANICS URBANI V GILLIONS AND SONS LIMITED CA CA56/03

PETER FRANICS URBANI V GILLIONS AND SONS LIMITED CA CA56/03 1 April 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA56/03BETWEEN PETER FRANICS URBANI Appellant AND GILLIONS AND SONS LIMITED Respondent Hearing: 3 March 2004 Coram: McGrath J Glazebrook J Chambers J Appearances: I G Hunt and A Isac for Appellant C S Withnall QC and A W Belcher for Respondent Judgment: 1 April 2004JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J Introduction[1] Mr Urbani worked in the funeral parlour operated by Gillions and Sons Limited (Gillions) for some six months, beginning in late 1987. He maintains that, as a result of this work, he suffered post traumatic stress disorder (PTSD) and other psychological damage. His claim against Gillions, on the basis of negligence, breach of a statutory duty and breach of fiduciary duty, was rejected by John Hansen J in a judgment of 5 March 2003. Mr Urbani appeals against that decision.Evidence at trial[2] Mr Urbani gave evidence and evidence was also given on his behalf by his mother, his ex-girlfriend, a friend and former business partner, a person who was, at the relevant time, an employee of New Zealand Towel Services and a psychologist, Mr Prosser. For Gillions, the main witnesses were Mr Gillions, the ManagingDirector of the funeral parlour, and two employees of Gillions at the relevant time. Evidence was also given by a number of other funeral directors and a consultant forensic psychiatrist, Dr Earthrowl, who had examined Mr Urbani and had also studied information relating to Mr Urbani, such as medical and psychiatric records. [3] John Hansen J began by summarising the evidence of the various witnesses. As Mr Urbani has raised some questions as to the Judge's factual findings, the following summary of facts is taken from John Hansen J's judgment. [4] In 1987 Mr Urbani was a pupil at Otago Boys' High School. After the death of his grandfather he developed an interest in funeral directing and, with the help of the school's career guidance counsellor, approached two funeral directors with a view to obtaining employment after he had left school. He was successful in obtaining work with Gillions under the then Department of Labour Job Opportunities Scheme. The details of this scheme need not concern us at this stage, apart from the fact that it required that Mr Urbani be subject to a stand down period of six months after leaving school before he could be employed under it. Mr Urbani's evidence was that he was invited to Gillions' premises on at least a weekly basis during this stand down period in order to observe the embalming process. [5] Mr Urbani commenced work with Gillions on 19 October 1987 and continued until 20 May 1988. He claimed to have been involved in one way or another in either observing or performing part of the embalming process in respect of virtually every deceased person Gillions attended to while he was employed there. [6] His evidence was that in the first four months of his employment he regularly observed embalming processes and in the last two months participated in those processes, gradually being given different tasks to perform. He described massaging a cream into a deceased person's skin to remove dark or clotted blood and he said he was shown how to break out rigor mortis by forcing the joints of the deceased to move. He also said that he was asked to lift out organs and place cotton wool in the body cavities of deceased persons as well as being shown how to use a scalpel and blunt hooks, which are used to separate muscle and sinew layers to find a main artery and vein.[7] Mr Urbani gave evidence of particular procedures that had caused him distress, including a description of the procedure whereby fluid is extracted from the chest and abdomen, a procedure that he said caused the person's organs to be torn apart. He also described the more upsetting nature of embalming procedures where there had been a post mortem and said that he had observed post mortem examinations at the Otago Medical School. [8] Mr Urbani also gave evidence of particular deceased that had caused him distress. He described, for example, the case of a young Australian who had died of a heart attack while skiing near Wanaka and on whom a post mortem examination had been carried out. He claimed that, when he saw the Australian at Gillions' premises, he was lying on a table carved open and resembling a "side of beef". Mr Urbani also described being upset by the sight of dead babies. [9] Mr Gillions' evidence was that he was sure that Mr Urbani did not attend the premises for the purpose of viewing or observing embalming procedures prior to the beginning of his employment. He had, however, come to the premises for an interview and Mr Gillions had taken pains to ensure that there was no peculiar reason why a sixteen year old boy wanted to work with a funeral director. [10] Mr Gillions admitted that Mr Urbani observed embalming procedures during the first four months of his employment and said that in fact it had been impossible to keep him away. He said that Mr Urbani may also have helped lift deceased persons on to tables and would have helped with the dressing of deceased persons. [11] Mr Gillions also admitted that in the last two months of his employment Mr Urbani would occasionally have assisted in washing the hair of deceased persons, cleaning their nails and washing and drying them. He dismissed Mr Urbani's claim of using the hydro-aspirator to extract fluids in the chest and abdomen and said that you do not feel the splitting and tearing of the person's organs when carrying out that procedure. [12] He said that Mr Urbani had made a number of errors in his description of the embalming process and in particular of the process when a post mortem examinationhad been carried out. He said that he had never seen corpses carved up like "sides of beef"'. The only time a corpse would be dissected into pieces is at medical school during anatomy training but Mr Urbani would never have seen bodies in that state as they are taken directly from the medical school to be cremated. He also said that there would have been a very limited amount Mr Urbani would have been able to see of post mortem examinations while at the Otago Medical School mortuary. [13] With regard to the specific deceased persons referred to above, Mr Gillions said that the Australian had died before Mr Urbani's employment commenced and the only infant deaths in the period were dealt with while Mr Urbani was on holiday. As to Mr Urbani's claim that he had been involved in observing or performing part of virtually every embalming process undertaken during his period of employment, Mr Gillions said that this would have been impossible, given Mr Urbani's various other duties. [14] As indicated above, two other employees of Gillions at the relevant time also gave evidence on behalf of Gillions. Their evidence was described in some detail by the Judge and was of similar effect to that of Mr Gillions. The Judge recorded Mr Wright, the employee of Gillions who appears to have had the most to do with Mr Urbani, as having no memory of Mr Urbani visiting the premises for the purpose of viewing embalming before his employment commenced. Certainly Mr Wright had not been involved in any such preview. [15] Mr Wright accepted that he had explained the embalming process to Mr Urbani while he was employed at Gillions and that he had shown parts of it to him, including the removal of rigor mortis. According to Mr Wright, Mr Urbani would also, from time to time, have assisted in the mortuary with tasks such as massaging cream into the skin of deceased persons. Mr Wright accepted that it was possible he had handed the hydro-aspirator to Mr Urbani to allow him to feel the machine in operation but said that Mr Urbani never performed the aspiration process from start to finish under his supervision. In particular, he said that Mr Urbani did not make the incision inserting the needle. He also said that the washing of the hair and the cleaning of the nails of deceased person occurs only after the embalming process is finished and that he had no recollection of teaching Mr Urbani to use a scalpel.Judgment of John Hansen J[16] The Judge, after describing the evidence adduced by both parties, made strong credibility findings in favour of Gillions' witnesses. He said that, whether it was to do with the narcissistic personality of Mr Urbani, as mentioned in the various medical reports, or for some other reason, it was quite clear that Mr Urbani is prone to substantial exaggeration and that this at time extends to an "almost fantasy world status." [17] The Judge accepted that there had been two meetings before the employment with Gillions commenced but rejected the evidence that Mr Urbani had observed embalming procedures in that period. He did not accept Mr Urbani's evidence as to the Australian skier or the dead babies and certain other specific matters raised by Mr Urbani. He was also satisfied that, given Mr Urbani's other tasks, it was simply not possible for him to have been involved in every embalming procedure Gillions undertook during his employment. The Judge said that overall he was satisfied that Mr Urbani had exaggerated what had occurred and that Mr Urbani had had only limited involvement with deceased persons and embalming processes in the last two months of his employment. [18] John Hansen J held further that Mr Urbani did not suffer from PTSD but did accept that he suffered from mild to moderate depressive illness. In holding that Mr Urbani did not suffer from PTSD, the judge accepted the evidence of the expert called for Gillions, Dr Earthrowl, as against that of Mr Urbani's expert, Mr Prosser. Both experts relied on DSM-IV (American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders – 4th ed) criterion A which requires a person to have been exposed to a traumatic event in which both of the following were present:(1) the person experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others (2) the person's response involved intense fear, helplessness, or horror.[19] Dr Earthrowl's view was that the criterion in A(1) is to be judged objectively and that what had occurred in Mr Urbani's case fell well short of what is required. Mr Prosser argued that the current trend was to move away from the requirement that there be a cataclysmic event and recognise that such events can be continuous and cumulative. Mr Prosser said that there was even evidence to suggest that damage to property was a more likely stressor. [20] The Judge held that the review of the literature relied on by Mr Hunt in submissions for Mr Urbani did not satisfy him that matters had moved as far as Mr Prosser would suggest. In any event, there were difficulties with Mr Prosser's diagnosis in his view, based as it was on the exaggerated self-reporting of Mr Urbani. The Judge also expressed concern that Mr Prosser's original diagnosis had been done without a full knowledge of Mr Urbani's medical history and about the fact that Mr Prosser was fulfilling two roles, as treating professional and independent assessor. [21] John Hansen J held that it was clear that there was no single event or experience that would fulfil the A(1) criterion and that there was nothing akin to what Dr Earthrowl described as continuous torture or something of that ilk. Mr Urbani was, in the Judge's view, dealing with bodies in a clinical and sterile environment and he said it was hard to see how this involved actual or threatened death or serious injury or a threat to the physical integrity of Mr Urbani or others. The Judge regarded what was described in this case as well removed from what one would normally find, even under an extended definition of PTSD. [22] The Judge recognised that Dr Earthrowl had accepted that Mr Urbani fulfilled many of the other post event re-experience criteria in DSM-IV. The Judge said, however, that the difficulty was that such acceptance was based on Mr Urbani's self reporting and he was satisfied that that this self-reporting was exaggerated in the same way that Mr Urbani had exaggerated the extent of his involvement with embalming processes. [23] As indicated above, the Judge did recognise that Mr Urbani suffered from a mild to moderate depressive illness. As to whether this illness was contributed to inany material manner by his work at Gillions, the Judge remarked that as Mr Urbani had so grossly exaggerated events while in the employ of Gillions it was virtually impossible to assess what contribution the work had had. He expressed the view that, if the work at Gillions had had any impact at all, it was at the very lower end of the continuum. In the Judge's opinion, Mr Urbani is a person who always seeks to blame others for his troubles and who accepts little responsibility himself. This, combined with the evidence of problems that Mr Urbani had had before commencing work and the other stressors in his life, led the Judge to find that Mr Urbani had failed to prove on the balance of probabilities that his illness was contributed to in a material way by the work at Gillions. [24] In the Judge's view, it was clear that Mr Urbani had been experiencing problems before he commenced employment with Gillions. The Judge referred to the fact that Mr Urbani had been truanting from school and that he had been involved in two serious incidents that had led to him being rendered unconscious and briefly hospitalised. He also referred to some documents that had been produced for the first time during the trial which he considered as pointing to the conclusion that Mr Urbani had been experiencing psychological problems before he commenced work with Gillions. He also noted some medical notes made just before Mr Urbani commenced employment with Gillions which referred to him as being wound up and talking too fast. These notes also referred to him working at a funeral directors as an embalmer at a time when the Judge was satisfied that Mr Urbani had had no experience of embalming and had not been in the mortuary. [25] Although, as John Hansen J noted, Dr Earthrowl had accepted that Mr Urbani's present psychological condition could in part be attributed to his work with Gillions, the Judge considered that Dr Earthrowl's acceptance resulted from a reliance on Mr Urbani's self-reporting. He pointed out that Dr Earthrowl had accepted in evidence that, if Mr Urbani's account was found to have been exaggerated, then Mr Urbani would move further down the continuum, as Dr Earthrowl put it. [26] The Judge recorded that Dr Earthrowl had also noted a number of other significant contributing factors to Mr Urbani's illness - the vulnerability of MrUrbani's personality, the perfectionism of his father, the death of close friends and the break up of a long-term relationship. In particular, the Judge recorded Dr Earthrowl's view that the break with the girlfriend was one of the most important factors. The Judge had earlier recorded the ex-girlfriend's evidence that this break up had happened shortly after the employment with Gillions ceased. In addition, he recorded that Mr Urbani suffered from a nose problem, which led to sleep apnoea, which was considered by one respiratory specialist to be a major cause of his depressive illness. [27] The next finding of the Judge was that, even allowing for Mr Urbani's age and even if he had accepted Mr Urbani's evidence, he was not satisfied that any harm to Mr Urbani had been foreseeable or that Gillions' conduct had contributed in any material way to his disability. He saida) There was no known or recognised risk of such injury arising from the particular employment.b) It was common practice for persons the age of the plaintiff to be employed in the industry. c) There were no complaints by the plaintiff or other overt signs which would have alerted a reasonable employer to the risks. d) The plaintiff presented as unaffected by the nature of the employment, indeed the opposite applied. e) There is no evidence as to what steps a reasonable employer may have taken. In any event there was a process in place which, in the circumstances applying in the 1980s, was appropriate. This included the steps taken by Mr Gillions to assess the plaintiff's suitability and the general support from all at the defendant.[28] The Judge also held that, if Gillions owed a fiduciary duty to Mr Urbani, it had not been breached and he rejected the cause of action based on breach of statutory duty. As to the affirmative defences pleaded by Gillions the Judge held that Mr Urbani's action was barred by the Accident Compensation Act 1982 and that it had been brought outside the limitation period in the Limitation Act 1950.Scope of the appeal[29] As can be seen, the decision of John Hansen J was made on a number of grounds. For reasons that need not detain us here, Mr Urbani took the unusual course of appealing against a limited number of the Judge's findings, even though a finding in his favour on those grounds would not dispose of the appeal. In the very unusual circumstances of the case the Court heard argument on those limited grounds and leave was reserved for Mr Urbani to apply to amend his grounds of appeal to cover the other findings, should he be successful in his argument. That we have been prepared to deal with Mr Urbani's appeal on a partial basis should not be taken as a precedent for other appeals. [30] This judgment therefore covers only the factual findings of the Judge in relation to the extent of Mr Urbani's involvement in embalming procedures, the finding that he did not suffer from PTSD and the finding that his work at Gillions was not a material contributing factor to his depressive illness. It does not cover the findings set out in paras 27 and 28 above, most of which were, of course, independently fatal to Mr Urbani's claim.Submissions of the parties[31] The first finding challenged on behalf of Mr Urbani is the Judge's finding that Mr Urbani had only "limited involvement with deceased persons and embalming processes in the last two months of his period of employment". Mr Hunt did not seek to challenge the credibility findings of the Judge but said that, even on Gillions' evidence, it was clear that Mr Urbani had had extensive involvement as an observer in the first four months of his employment and a large measure of participation in the last two months. In Mr Hunt's submission, the Judge failed to recognise Mr Urbani had observed embalming procedures in the first four months and he also minimised the participation in the last two months. [32] Mr Withnall QC, on behalf of Gillions, submitted that the use of the word 'limited' by the Judge had both a temporal and comparative meaning. The Judge was saying that actual participation in the embalming process was limited to the last twomonths of employment. There was also a finding that Mr Urbani's involvement had been much less extensive than Mr Urbani maintained. This was, in Mr Withnall's submission, a finding clearly open to the Judge. [33] Mr Hunt's next submission was that the Judge should not have accepted Dr Earthrowl's insistence that the A(1) stressor be objectively assessed, although he conceded in argument that, as there were different views from the experts on this point, this finding would be difficult to overturn on appeal. He also submitted that the Judge's criticisms of Mr Prosser's evidence were unfair and that the Judge was wrong when he rejected aspects of both Dr Earthrowl's and Mr Prosser's evidence on the basis that it was dependent on Mr Urbani's self-reporting. There remained, in his submission, the extensive involvement in embalming as described by Gillions' witnesses. The discounting of Mr Urbani's evidence in relation to specific matters did not, he submitted, obviate the need for assessment of the evidence as to exposure generally and the reactions to that exposure. Mr Hunt also criticised the Judge for his concentration on PTSD as the primary allegation. The case for Mr Urbani had always been that his employment had caused mental injury including both PTSD and a depressive illness. [34] Mr Withnall submitted that the Judge was entitled to accept Dr Earthrowl's evidence as to the requirements of DSM-IV, especially given the problems the judge had identified with Mr Prosser's evidence. Mr Withnall also submitted that the Judge had expressly rejected Mr Urbani's evidence of his reactions to the exposure so that the A(2) criterion was not in any event met. Mr Withnall submitted further that an opinion that Mr Urbani suffered from PTSD or other mental injury was necessarily dependent on Mr Urbani's reporting of events which allegedly gave rise to the conditions in question. When those experiences were found to have been exaggerated, the Judge was entitled to discount the experts' views accordingly. [35] The next submission for Mr Urbani was that the Judge should have found that Mr Urbani's work at Gillions had been a contributory factor to his illness. Mr Hunt accepted that the Judge had applied the correct legal test but submitted that the Judge's minimisation of Mr Urbani's exposure to embalming procedures had led him into error in assessing causation.[36] Mr Hunt submitted further that there was no evidential foundation for the Judge to find that there were stressors in Mr Urbani's life before he commenced employment with Gillions. At least, there was no evidential foundation for the view that Mr Urbani was suffering from psychological difficulties before he commenced employment as neither expert considered that this had been the case. In addition, Mr Hunt submitted that the Judge's findings mistakenly appear to assume the break-up with the girlfriend occurred before the employment commenced, which was not the case. [37] In Mr Hunt's submission, given Mr Urbani's age and the extent of his involvement with the embalming process as accepted by the Gillions' witnesses, there must have been a relevant link between those experiences and Mr Urbani's depressive illness. It was not open to the Judge, in his submission, to hold that the other stressors in Mr Urbani's life were so overwhelming that they completely overshadowed Mr Urbani's experiences at Gillions. In Mr Hunt's submission, the Judge should have accepted Dr Earthrowl's opinion that Mr Urbani's employment at Gillions was causative to some degree of his depressive illness. [38] Mr Withnall submitted that the Judge was entitled, on the evidence, to come to the view that there had been pre-employment stressors. In particular, the documents produced at trial recorded, in Mr Urbani's own handwriting, the difficulties he had been facing at that time. The pre-employment medical record was also very important evidence of such difficulties. [39] Mr Withnall submitted further that the Judge did not suggest that the break up with the girlfriend occurred pre-employment. He was well aware of the timing. The Judge was also entitled, on the basis of his assessment of Mr Urbani's evidence, to come to his own view on causation.Discussion[40] As to Mr Hunt's first submission that the Judge failed to recognise that there had been extensive observation by Mr Urbani of embalming procedures in the first four months of employment, this is unable to be sustained. The Judge recorded MrGillions' evidence of observation in those first four months and the evidence of involvement in the last two months. He then said that he accepted the evidence of the Gillions' witnesses, which must necessarily encompass the evidence he recorded as to observation in the first four months. [41] We also reject Mr Hunt's submission that the Judge minimised Mr Urbani's participation in the embalming process during the last two months of his employment. In recording his acceptance of Mr Gillions' evidence, the Judge must have been accepting the level of involvement described by those witnesses and summarised by him in his judgment. That summary did not of course include all the evidence Mr Hunt has referred us to but it is, in our view, a fair summary of that evidence. We agree with Mr Withnall that, in referring to Mr Urbani's limited involvement in the last two months, the Judge was speaking in a comparative sense – the involvement was limited compared to what he found to be Mr Urbani's exaggerated account. [42] With regard to the Judge's finding that Mr Urbani does not suffer from PTSD, we consider this was a finding he was entitled to make. The Judge was faced with conflicting evidence as to the requirements of DSM-IV criterion A(1) from the two experts. He was entitled to accept the evidence of Dr Earthrowl as to the proper test to apply. This is particularly the case in light of the problems he identified with Mr Prosser's evidence and his findings as to Mr Urbani's exaggeration of his experiences, his reaction to those experiences, his symptoms and the link he made between those experiences and his work. All of these matters were in our view relevant and were validly taken into account by the Judge. We note too that the Judge did in any event consider an extended definition of PTSD and concluded that Mr Urbani's experiences could not have met that test either – see para 21 above. [43] Mr Hunt also complained that the Judge's treatment of PTSD as the primary allegation was inconsistent with Mr Urbani's case. The Judge nevertheless found the existence of a depressive illness and so Mr Urbani can have no complaint in this regard. [44] We move now to the Judge's findings on causation. As indicated above, the Judge considered that, given the indications of pre-employment difficulties, the other stressors in Mr Urbani's life and Mr Urbani's exaggeration of his experiences atGillions, he had failed to prove that the Gillions' work was a material contributing factor to his illness. [45] The Judge had to come to his own view on causation after taking into account all the evidence and paying due regard to the views of the experts. The Judge was not obliged to accept the views of the experts, particularly as those experts had based their views, at least in part, on what the Judge found to be Mr Urbani's exaggeration. With regard to the specific matters raised by Mr Hunt, we consider that there was ample evidence of pre-employment difficulties (as set out in para 24 above), some of which was not produced until trial. Significant other stressors in Mr Urbani's life arose after the employment had ceased (and we note that the Judge was clearly aware of the timing of the break up with the girlfriend – see para 26 above). We have also found that the Judge was aware of and accepted the level of involvement in embalming as described by Gillions' witnesses. His view as to causation was thus clearly founded on an acceptance of that level of involvement. [46] Taking into account all of these factors, we consider that the decision the Judge came to on the causation point was one available to him on the evidence and should not be disturbed.Result and costs[47] Mr Urbani has failed with regard to all of the grounds of appeal argued so far. This disposes of the appeal and there is no need to consider whether Mr Urbani should be given leave to extend his grounds of appeal. [48] The appeal is therefore dismissed. [49] Mr Urbani is, we understand, legally aided. If this is not the case, Gillions has leave to file a memorandum on costs on or before 7 April 2004. Mr Urbani can file a memorandum in reply on or before 21 April 2004.Solicitors: Young Hunter, Christchurch for Appellant Lucas & Lucas, Dunedin for Respondent