Public Trust as Executor and Trustee of the Estate of Baker v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012] NZACC 229 ACR 51/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN PUBLIC TRUST AS EXECUTOR AND TRUSTEE OF THE ESTATE OF BRENT BAKER DECEASED Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 9 February 2012 Appearances: Philip Schmidt for Appellant Fenella Becroft for Respondent Supplementary submissions completed: 2 April 2012 Judgment first issued: 13 July 2012 Recalled and reissued: 31 July 20121 JUDGMENT OF JUDGE RODERICK JOYCE QC See [202] below. BRENT BAKER V ACCIDENT COMPENSATION CORPORATION ACAA WN ACR 51/11 Preliminary [1] One of the matters I raised at the hearing of this appeal was that with Mr Baker having died it was necessary, if the proceedings were to continue, that there be substituted as appellant his successor at law. [2] Mr Schmidt subsequently identified the Public Trust as sole executor and trustee of Mr Baker's last will and (under cover of his memorandum of 19 March 2012) produced correspondence which satisfies the Court that that is the case and that the Public Trustee has effectively concurred in the continuation of the proceedings in its name. [3] It appears that the estate is bereft of assets save for any benefit that this proceeding may bring it. But, rightly in the circumstances, counsel for the Corporation has not voiced any concern on that, or any other, account. [4] Thus in terms of DCR 3.35 (which applies HCR 4.49-52) I make an order that this proceeding be continued between the Public Trust as executor and trustee of the estate of Mr Baker and the Corporation. I also dispense with the formality of sealing and service of that order. Reason for appeal [5] This appeal has been against the revocation of previously deemed cover decisions conveyed by the Corporation to the late Mr Baker on 14 and 28 October 2010. [6] In the 14 October case he had unsuccessfully taken the Corporation to review on account the revocation of deemed cover for drug dependency and depression. [7] In the 28 October case he had unsuccessfully taken the Corporation to review on account revocation of deemed cover for hepatitis C. [8] In both cases Mr Baker had (and the Public Trustee does now) put in issue the correctness of the revocation and the upholding of same on review. [9] The original decisions - those deeming and then revoking cover - had been expressed as now follows. That of 14 October 2010: Decision 1: Application for Mental Injury cover - Deemed Decision I refer to your request dated 10 March 2010 seeking cover for mental injury being depression and drug dependency as a consequence of your right below knee amputation. ACC has failed to provide a decision within the statutory timeframes. Therefore pursuant to section 58 you had a deemed cover decision as at 31 March 2010 for mental injury as a consequence of a physical injury: Drug dependency Depression Decision 2: Deemed Decision Revoked - Cover Declined ACC was not satisfied based on the evidence to date that you have cover for a mental injury as a consequence of your amputation, as a result ACC revokes the deemed decision of 31 March 2010 pursuant to Section 65 (2). Having considered the evidence to date ACC declines cover for mental injury, being depression and drug dependency. ACC still believes that further investigation into these injuries is necessary and this investigation is currently ongoing. Once the investigation is complete ACC may reconsider this decision. We will notify you in writing if the decision is to be changed. This is a formal decision and therefore you have the right to lodge a review... [10] That of 28 October 2010: Decision 1: Application for Injury cover - Deemed Decision I refer to your request dated 10 March 2010 seeking cover for injury being Hepatitis C as a consequence of your right (sic) below knee amputation. ACC has failed to provide a decision within the statutory timeframes. Therefore pursuant to section 58 you had a deemed cover as at 31 March 2010 for an injury as a consequence of a physical injury: Hepatitis C Decision 2: Deemed Decision Revoked - Cover Declined ACC was not satisfied based on the evidence that you have cover for Hepatitis C as a consequence of your amputation, as a result ACC revokes the deemed decision of 31 March 2010 pursuant to Section 65 (2). Having considered the evidence ACC declines cover for injury, being Hepatitis C. ACC believes that investigation into the injury cover is complete. This is a formal decision and therefore you have the right to lodge a review... [11] Mr Baker's review applications in respect of the revocations were dismissed on 23 December 2010 and this appeal followed. Background [12] Mr Baker was the victim of a motor cycle accident in July 1986. He was then 25 years old. He suffered a compound fracture of the left lower leg. This was initially treated with external fixation but it became necessary to perform a below knee amputation. That followed in January 1987. [13] Because of further complications relating to the healing of the stump, he had to undergo successive skin grafting procedures. It took well over a year for the stump to settle. In 1989 he had to return for reconstruction of the stump: that to deal with the problem of multiple neuromas. [14] As if that had not been enough, when he received a long awaited new prosthesis at the end of 1997 it did not fit properly and (10 or more years now after the accident) caused a breakdown of the amputation scar. He received a replacement and better fitting prosthesis in December 1998. In the meantime: In 1995 he attended a rehabilitation programme for substance abuse. In November 1996 he began working (on and off) for his brother-in-law as an aluminium fabricator. In the 1990s he was diagnosed with hepatitis. The infection related to his intravenous drug use. [15] Reporting to the Corporation on 12 March 1999, Dr Siobhan Gavaghan (an occupational medicine specialist) noted that following his injury Mr Baker had developed a dependency on analgesia. He required rehabilitation. [16] Unsurprisingly, he had faced major psychological distress following the accident. When Dr Gavaghan saw him he was also still trying to come to terms with his loss of limb. She was of the view that he was fit to work the requisite for vocational independence number of hours per week in four occupations. On account a consequential finding of vocational independence, weekly compensation was suspended from 25 June 1999. However, from 2005 through to 2008 the Corporation did fund replacement prostheses. [17] In September 2009 Mr Baker was seen by a consultant hepatologist at the Auckland District Health Board Liver Clinic for problems including decompensated cirrhosis. He had obviously had problems managing (vital to his health) abstinence from alcohol. It was considered that he needed to be under close review. Mental injury? [18] On 16 November 2009 Dr David Codyre, consultant psychiatrist, saw him concerning problems of depression, substance use, chronic pain and physical and medical problems generally. (By this time the Corporation was of the view that any deterioration in his work capacity was on account non-injury related factors.) [19] The history recorded by Dr Codyre was that before the accident Mr Baker had been an active rugby league player at quite senior level with no history of mental health or addiction issues. But after the accident, and over time, he had dwelt more and more on what he had lost - his sport, his work and his relationship with his wife. [20] He had also developed persisting stump pain at the site itself and "phantom" pains (as if) from the lost leg. He admitted to the already mentioned addiction to analgesics and to drinking more and more to cope with pain and depression. [21] As briefly rehearsed in [14] above, in the mid-1990's he had finally addressed his addiction issues; specifically he had gone on to methadone maintenance, abstinence from alcohol and reduction of cannabis use. [22] Dr Codyre's report of 16 November 2009 was based on a one-hour assessment of Mr Baker and consideration of Corporation records. With that qualification, he opined that the onset of post-accident chronic pain and complicated/prolonged recovery indicated that there was almost certainly a mental injury" caused by the physical injury. [23] Major depression was, he said, a recognised as a frequent co-morbid complication of chronic pain disorders and was also likely to have been contributed to by the injury-related impairment and disability. [24] He then continued: On balance it is my opinion that there is sufficient evidence to suggest these disorders ARE (sic) caused by the physical injury. However, the addiction issues which evolved, and in many ways were the biggest issue both then (in terms of consequences in his life) and now (in terms of subsequent Hepatitis C and cirrhosis of the liver), are harder to causally link to the physical injury. Prescribed Opiate dependence is common in chronic pain, but abuse of illicit opiates is much rarer. Likewise alcohol abuse is not uncommon in the face of chronic pain, but alcohol dependence rarer. There is less in the psychiatric literature to clearly support potential causal links to physical injury, as opposed to injury as a stress which precipitates conditions to which there was prior significant predisposition. On balance, based on this brief review, it is however my opinion that there is sufficient evidence to suggest that the pain disorder and depression are causally linked to the physical injury, to recommend that Brent be referred by ACC for an independent comprehensive psychiatric assessment and opinion in this regard. Brent certainly needs access to treatment for his mental health issues... See [121] below for the statutory definition of 'mental injury'. [25] It does not appear that the Corporation took up Dr Codyre's suggestion at this juncture, but that may have been because there was no formal claim for mental, consequent upon physical, injury cover at that point. [26] As to Mr Baker's general health around the time that Dr Codyre saw him, I see that he was referred by his general practitioner to Dr Black, an occupational and environmental medicine specialist. Dr Black reported on 2 December 2009, noting that Mr Baker was awaiting a liver transplant to treat end stage cirrhotic failure. [27] He described him as weak, emaciated and pale, walking uncomfortably with a stick and having a stooped gait. He opined that Mr Baker was clearly not capable of anything like full time work of any type, predominantly because of his liver condition. [28] This appears to have been the state of Mr Baker's case when Mr Schmidt came into the picture as solicitor and counsel for Mr Baker. Mr Schmidt wrote to the Corporation on 10 March 2010, making reference to the views of Dis Black and Codyre and advising that the purpose of the letter was to file a claim for mental injuries resulting from his covered physical injury. [29] He identified as the mental injuries for which cover was claimed drug dependency and depression. The letter was also to be taken as a claim for hepatitis C relating to intravenous drug use arising from drug dependency. [30] He proposed claims for: (a) backdated weekly compensation on the basis of deterioration of Mr Baker's health due to drug dependency and mental health issues (including hepatitis C); and (b) for backdated attendant care on the basis that, on account the health problems relating to his amputation, his parents had been looking after him for approximately 10 years. [31] Emphasising that Mr Baker might die in the near future, Mr Schmidt also requested an immediate lump sum assessment. In doing so he accepted that For which in fact he did not qualify - see the 1 1/9/09 report of Dr Harry, consultant hepatologist, who explained that failure to comply with clinical attention requirements and alcohol intake ruled him out as a transplant candidate. See also [40] below. Mr Baker had had a significant lump sum payment under the 1982 Act so that there would be a large deduction (approximately 70 percent so I understood), but submitted to the Corporation that he might be assessed at a higher figure should his condition due to covered injuries be terminal. [32] On 30 July 2010 the Corporation wrote to Mr Baker as follows: Your advocate has applied to ACC to have the following additional condition added to this claim Hepatitis C Thank you for your patience while we waited for the information needed to determine whether ACC can cover the following injury under this claim: [Secondary-8-Fracture-Multiple Locations-Not Applicable; Not Selected-14N41-H/O: lower limb amputation-Left] After careful consideration, we're sorry to say we can't approve cover for your injury. We're unable to approve cover for your injury because Hepatitis C is a disease and infection and is not a personal injury. Unfortunately, this means that ACC is not able to help with the costs of treatment or other support for this injury. Please call me if you would like to talk about this decision. I'll be happy to answer any questions or, if you have any concerns, work with you to resolve these. This is a formal decision and therefore you have the right to lodge a review... It would appear that this decision letter* was not posted until 18 August 2010. [33] Thereafter the Corporation referred Mr Baker's case to another consultant psychiatrist, Dr Pieter van der Westhuizen. His report to the Corporation of 6 October 2010 makes clear in its first paragraph that the Corporation sought his assessment of whether Mr Baker's mental condition was clinically significant and had been caused by the July 1986 accident. Ms Becroft point out in her submissions (at 2.38) that this 'decision' was in fact given out of time and that the Corporation sought to regularise matters when on 28 October 2009 it recorded a deemed cover outcome which it thereupon revoked The original was revised after its reference (see later) to Dr Collier, but the date remained the same. I generally refer to the revised report. [34] Dr van der Westhuizen appreciated that his advice might be used by the Corporation to determine whether Mr Baker was eligible to receive Corporation assistance for this condition. [35] He acknowledged that the Corporation had sent him voluminous medical materials from which, given the shared area of specialisation, he had first selected out Dr Codyre's 16 November 2009 report to which I have already alluded. [36] Dr van der Westhuizen rehearsed that Dr Codyre, in reference to psychological testing, had recorded in respect of Mr Baker this: 1) Kessler 10 - with a score of 27 out of a possible 50 which would reflect medium risk of depression, anxiety disorder. 2) A PHQ 9 Depression Rating Scale score would be moderate depression. 3) Pain, Anxiety Symptoms Scale total score 64/100 indicating moderate levels of difficulty as a result of pain with moderate levels of pain related activity, avoidance and anxiety and unhelpful pain related beliefs. 4) Pain Visual Analogue Scale - scores all in the range 3 to 8/10 indicating moderate intensity of pain and of resulting distress. [37] He then noted that: Dr Codyre interpreted his Mental State Examination at that stage as being mildly unkempt, physically looking very unwell, jaundice with a moderate pill-rolling tremor of the hands. Superficial rapport only. Speech was hesitant and halting. Logical and clear in thoughts although depressive thinking as content. No perceptual abnormality. Depressed mood. Affect flat. Orientation - he was fully orientated, alertness, drowsy, poor attention span, short and long term memory intact with reasonable insight and judgment clinically intact. The DSM IV Diagnosis was put forward by Dr Codyre as follows: Axis 1: Major Depressive Disorder, chronic, moderate Somatoform Disorder that is a Pain Disorder secondary to medical and psychological factors moderate and chronic. Substance Abuse/Dependence, Alcohol Dependence in remission, Opiate Dependence on maintenance Methadone. Axis II: Was not addressed or mentioned in Dr Codyre's report. Axis III: Was given as below knee amputation of the left leg. Hepatitis. Cirrhosis of the liver, advanced Axis IV: Psychosocial stress level was identified as a lack of primary support systems with a wife that left him after his injury with minimal contact with her or their child, that he is dependent on his elderly parents and living with them/or had been living with them, that he is socially isolated and he has an occupational problem in the sense that he is unable to work due to his illness. He had economic problems with financial problems and he has problems with access to health care - that is, details lacking of a diagnosis and treatment plan for mental health issues Axis V Global Assessment of Functioning was put at 31 to 40 which indicated a major impairment in several areas of function. He then referred to Dr Codyre's conclusion; that to which I adverted at [24] above. [38] After noting Mr Schmidt's submission to the Corporation of 10 March 2010, he catalogued with apparent care - and in that catalogue summarised - a miscellany of other reports made available to him, including several quite historical in nature. [39] What Dr van der Westhuizen had gained from Mr Baker himself (together with his mother) was this: Brent is an adopted child and could not give any family history of substance abuse. He is not currently involved in any committed or supported relationship of any kind. It is difficult for him to surrender or to submit himself to any process that requires spiritual faith or trust. Brent does not have a spiritual practice of any kind that helps him to deal with emotional stresses. He states that he tries to be outside for fresh air and tries to do some walking when he needs to comfort himself. His only prior experience with counselling was psychotherapy (except for the psychiatric assessment by Dr David Codyre) with Dr David Blair. Brent has reported frequent headaches, flashbacks about traumatic events, the feeling at times of feeling arge or smaller than himself (depersonalisation), when looking in the mirror he s something besides the usual reflection (derealisation). Many different diagnoses over the years have been reported. Brent makes use of marijuana to help him feel relaxed, at ease and to keep at bay any unpleasant or troubling emotions. Brent identifies his main condition as that of liver failure. He confirms that he had a motorbike accident in July 1986 with the loss of a limb and that the limb had re-fractured at work due to a bad fitting of the prosthetic leg. Other traumatic experiences in his life included times when he felt shattered and overwhelmed was that of his partner leaving with their child and having no contact for many years. He also reports suffering from arthritis, numbness, visual problems, poor memory, insomnia, fatigue and cancer. My interview with Brent was, given the circumstances of a terminally ill patient in the company of a frail, aged, extremely concerned and upset mother, unstructured and with the focus on the assessment done in a humane and non-confrontational way, I therefore apologise for the seemingly random way that information will be dispersed with in my assessment. What had transpired during the interview was the following: Brent reported good school days. He was made captain of his sports team. He was adopted and had always been knowledgeable about this. He was 9 days old when he was adopted in Auckland but neither he nor his parents have any knowledge what-so-ever about either the existence or genetic history of Brent's biological family. He has an older sister. His parents thought that mum would not be able to have another child so they had Brent adopted and he was the blue-eyed boy, when mum fell pregnant with a little girl again he was the only son. Brent seems to have enjoyed a nurturing loving childhood. His father was involved in mainstream rugby league, he coached a team from the age that Brent could basically stand up and walk next to the field. The whole family were united in their enthusiasm and activities. Brent himself played rugby league, Gloria' was a housewife and his dad was a builder, half trained. His older sister is 53 years of age and his younger sister is 47. Whereas the two girls were breastfed, Brent was on the bottle. Gloria has to really stretch her memory to give feedback about his early childhood but seemed to remember Brent being somewhat unsettled and colicky at the time, unfortunately as per reality she could give no events that had transpired pre peri or natally for Brent or post natally a few days prior to the adoption. Brent said he was rather accident prone but denied emphatically the existence of any attention deficit hyperactivity disorder. He had no separation anxiety. He did not suffer from childhood anxiety, neurosis, development or milestone retardation or problems. His adjustment at school was good. There was no antisocial behaviour such as pathological lying, stealing, skipping school, theft, arson, hurting animals etc. When he did tell a lie his mother would always know when he was lying and he would always later confess about lying. He started smoking and experimented with marijuana on a weekly basis. There were no behavioural issues at school. Academically he fared well enough to pass each year. At 16 he left school at the beginning of 5" form as he felt school was too hard and he had other goals in mind for himself. He thought school was a waste of time. He started at a tyre business and then went to Australia for a period of time. He did well in his work, relationships and social life. Brent came back and spent time intermittently living at home, having normal relationships with friends and girlfriends and although his alcohol intake increased between the ages of 20 to 25 years of age, he claims there was no interference with his work, his social life or his behaviour that would have classified alcohol, except for binge drinking patterns, as being a problem for him. He had no admissions to rehabilitation centres prior to that and no presentations to Emergency Departments and claims he had no prior offending or a forensic history pre-dating his accident when he was 26 years of age. 6 Mr Baker's adoptive mother. Brent relates the accident as follows: He had just suffered an injury of his right leg and the plaster cast had come off. He was having a leisurely drive on a scenic road and stopped on the right shoulder of the road, totally off the roadway so that he could sit on his motorcycle admiring the beautiful country view. Reportedly a girl without a licence of 16 years of age came rushing towards him in a motorcar and crashed into him. He was thrown 30ft up in the air and when he awoke he came around to find his leg was lying next to his body with his foot and toe close to his face. He described to me that his leg had splintered in 7 places, the boot and foot came off (in his words). This was followed by 6 surgical operations. He had to wait 2 years - after the initial prognosis that he would be ready for prosthesis after only 6 weeks. More trauma and higher amputations followed. Problems with artificial prosthesis, neuromas, phantom pains. His partner unfortunately also abused drugs and alcohol. Brent started taking copious amounts of drugs and alcohol to help with his chronic pain which surgery and other pain relief would not help. His partner fell pregnant and left him abruptly with their young son. He did not see his boy again for 10 years. Gloria described the filth of the place when they went to procure Brent's possessions. His partner had a trespass order out against him. Brent started having withdrawal symptoms from alcohol and drugs. He would have constant sneezing, increase of pain, a scratchy feeling and dysaesthesia. He was drinking, living away from home. He wanted money to buy things, he ended up in prison for assault and DUI's, Brent mentioned something like 18 episodes of DUI's. He contracted Hepatitis C due probably to IV Morphine use as reported elsewhere. His father at present is 83 and he suffers from hip operations, problems and dementia. Gloria cannot share with her husband her total concern and the total hopelessness of Brent's prognosis because her husband is in an emotionally vulnerable state and cannot deal with anything out of the ordinary Brent himself is a tallish person, with a jaundiced complexion. He looks frail and old beyond his years. He shuffles along slowly with a cane. His affect is blunted. He maintains good eye contact. His speech is low in volume and tone almost monosyllabic, monotonous and with a lack of prosody. There is a visible tremor in his hands. His level of consciousness did not appear clouded but his orientation was poor. He was wrong with the day of the week and the date. He had difficulty remembering the month, and could not relay time-wise chronological events over the past week. He had problems with short term memory and could only remember I out of 3 words after 2 minutes. His serial 7 test was pathetic. His general knowledge is poor. He had problems remembering the surname of New Zealand's political leader and the only area of general knowledge that he seems to be fairly well versed in was the present status of the Warriors Rugby League Team. His thoughts could not abstrasise, were concrete and he relied heavily on his mother for information, both on the medium and long term which he seemed to be unable to recollect. He had obviously been having intermittent periods of delirium with clouding of consciousness, faecal incontinence and even seizure activity in the past. Due to his hepatic encephalopathy and his depressed mood there is, in my mind, no doubt that Brent suffers from a so-called "organic brain syndrome". His sleep is poor, he had recollection, hyper-vigilance, exaggerated startle response, social avoidance, numbness, hyper-arousal and irritability at times. (Emphasis added) [40] Responding (in the revised version of his report) to the questions put to him, Dr van der Westhuizen wrote: Please describe the difficulties currently experienced by Brent Brent is a 49 year-old person suffering from end-stage liver failure, who does not qualify for a liver transplant. He is terminally ill and may die at any point in time. He has various other problems inclusive of possible liver cancer, portal hypertension, kidney failure, brain damage, mood disorders etc and needs intensive medical and nursing care as well as palliative emotional care which he can't fund and neither can his parents. I am not aware of any insurance that covers Brent to deal with his terminally ill illness with no prognosis what-so-ever of recovery. In your opinion does Brent have a clinically diagnosable mental condition in terms of the DSM IV Diagnostic Criteria? Yes, the diagnosis would read as follows: Axis 1:7 Dementia (post liver failure due to Hepatitis C, due to intravenous drug use, due to the physical injury that is a motorbike accident in 1986) Major Depressive, Major Depression, Severe Anxiety Disorder with generalised panic, social avoidance, etc. Chronic Pain Disorder with both a psychological and medical component Axis II:8 Dependent Personality Traits Axis III:" (Clinical assessment.) No formal psychometric projective assessment. Hepatitis C induced liver failure, possibility of cancer, portal hypertension, esophageal varices , haemochromatosis, drug dependency. Axis IV: 10 Psychosocial stresses: are also overwhelming both longitudinally and cross-section ally, he is destitute as far as funding for proper care, accommodation, spiritual, medical care is concerned. Axis V:11 Global Assessment Functioning: He is the same as somebody with a psychotic illness that would be between 20 and 30. The diagnosis. Developmental (as in childhood) and personality disorders. Physical conditions affecting I and II. Severity of psychological stressors. Highest current and recent level of functioning. My Diagnosis 12 Brent has suffered from depression, pain and drug abuse. Although it is recognised that the accident was causal to much physical and emotional suffering, it is tedious and impossible to link his dementia at present to a circuitous path of speculation of accident causing post traumatic stress disorder (which if present) is masked by the severity of his dementia causing drug abuse causing hepatitis causing dementia. [41] Subsequent 12 October email exchanges within the Corporation are now noted: From Peter Jansen to Anthony Burgess I left some notes on Michael's desk. Two issues are unresolved: 1) the cause of the cirrhosis (which led to cancer) - the assessing psychs have not considered the known haemochromatosis - this needs consideration by a hepatologist 2) Dr Codyre does not ascribe addiction to the covered physical injury, and Dr v der W has not provided a rationale - both these reports need a peer review (say Dr J Collier - an expert peer reviewer). From Anthony Burgess to Peter Jansen I have just seen a RIS claim where a client has a 1986 injury leading to amputation of leg. Client was work capped in 1999. He has recently been diagnosed with hepatocellular carcinoma, which has been causally linked to his injury via a psychiatric assessment via the following Amputation leading to chronic pain leading to opiate dependency leading to IV drug use leading to Hep C leading to HCC. Along with this he has depression, anxiety disorder, and dementia due to encephalopathy. He has Philip Schmidt advocating and requesting for lump sum, 10 years of back dated attendant care and weekly compensation, the likely sum of money would be in the hundreds of thousands. I completely disagree with the report and the conclusions reached... [42] The 14 October 2010 determination of the Corporation was self-evidently issued two days later. In it the Corporation recorded that it believed that further investigation was necessary and was ongoing - a point which, in all fairness, should not be overlooked: especially given the associated advice to Mr Baker that such might lead to reconsideration. 12 As revised post Collier: see footnote attached to [33] above. The liver disease issue [43] Because the wider picture must count as important in my ultimate consideration of the mental injury issue, at this early point I include the essential substance of the medical evidence regarding the hepatitis. [44] In a communication dated 28 October 2010 from Dr Gane (the Chief Hepatologist at the New Zealand Liver Unit at Auckland City Hospital) this advice was conveyed: Brent has been an inpatient under my care on several occasions for complications of his end-stage liver disease. He is now receiving palliative care. The aetiology of Brent's liver disease is chronic hepatitis C (HCV) infection, he presumed date being at the time of acute icteric hepatitis in 1990. Brent's hepatitis C was acquired through previous injecting drug use. The progression of his chronic hepatitis C has been accelerated by very heavy alcohol use. Brent also has genetic haemochromatosis which in the context of heavy alcohol use has resulted in iron overload within the liver which also may have accelerated the progression of his chronic hepatitis C. Despite adequate iron unloading of the liver with regular venesection, however, Brent's liver disease has continued to progress, reflecting his active HCV infection In summary, the cause of Brent's end-stage liver disease is chronic HCV infection, which has been accelerated by both long history of alcohol abuse and also by iron overload from the inherited disorder of haemochromatosis The latter has been adequately treated by regular venesection since March 2000. Despite this, his liver disease has progressed to end-stage because of his active chronic hepatitis C and heavy alcohol use. Although he stopped alcohol use in 2009, his HCV infection remains active and continues to damage his cirrhotic liver. Because he is too sick to receive antiviral therapy for his HCV infection, unfortunately he will continue to deteriorate and his expected survival is now -2 years. (Emphasis added) [45] This communication, along with some in-house at the Corporation exchanges that intervened, plainly led to the 28 October 2010 decision set out at [10] above. 13 As to Mr Baker's state a year or so before, see [70]-[73] below. Depression - Dr Collier's review [46] As recommended by its Peter Jansen, the Corporation referred the reports of Dr van der Westhuizen and Dr Codyre to Dr John Collier, psychiatrist and physiotherapist in Hamilton, requesting a file review. The request letter indicates that the documentation passed to Dr Collier for this purpose was comprehensive. [47] In his response, Dr Collier set out to summarise the views respectively expressed by Dr Codyre and Dr van der Westhuizen. Starting with Dr Codyre, Dr Collier takes the view that his colleague proceeded on limited information and inquiry (which of course Dr Codyre himself acknowledged when reporting). [48] Turning to Dr van der Westhuizen, Dr Collier offered this critique: Dr van der Westhuizen's report does not comply with the ACC 2059. There is an excellent review of documentation (first nine and a half pages) and there is a caveat regarding the difficulty with the interview situation. On page 10 he reviews medication, reviews family history and reviews the accident. There is a comprehensive history of childhood and he notes the onset of cannabis consumption in his teens. There is the patient's view of the accident and a significant assessment regarding his partner's use of drug and alcohol. There is no personality assessment. Mental state examination identifies an organic brain syndrome but there is no personality assessment and no symptomatic enquiry (depression, anxiety or pain symptoms) nor is there any symptomatic enquiry regarding "elements of post traumatic stress disorder'. With regard to the DSM-IV diagnosis I agree with the Axis I diagnosis of dementia (post liver failure to Hepatitis C, intravenous drug use). The question of whether it is 'due to the physical injury that is a motorbike accident' is questionable. Dr van der Westhuizen has made a diagnosis of major depressive, major depression - severe. The DSM-IV criteria are quite clear and there is no history of all of those symptoms (Section A) and in my opinion major depression cannot be diagnosed in the presence of factors from Criterion D - 'the symptoms are not due to the direct physiological effects of a substance or a general medication condition'. Diagnosis of major depression is untenable in the presence of significant methadone use, cannabis use and the presence of liver failure. There is no evidence in the body of the report to support a diagnosis of anxiety or generalised panic. The chronic pain disorder is likely, elements of PTSD are not reported and are in my opinion unlikely. On Axis I Dr van der Westhuizen has made no mention of previous alcohol abuse, current cannabis abuse or previous opiate abuse". I agree with his notes on Axis II dependent personality traits' although there is no evidence in the body of the report to support this. I agree with Axis III, Axis IV and Axis V. 14 None of these appears to have been a significant (amounting to abusive use) pre-accident feature of Mr Baker's life, but some mention of use of cannabis and (in non-specific terms) of binge drinking episodes does feature in Dr van der Westhuizen's history. (Emphasis added) [49] In the result, Dr Collier opined as follows: The opinion offered is based on the available documentation". Mr Baker appears to have commenced cannabis consumption on a regular basis as a teenager and was a regular user of alcohol prior to his injury. Note is made hat he injured his right leg (right leg fracture) and that many of the reports regarding pain are referred to his right leg pain (ankle and Achilles tendon). Note is made in 1986 he was involved in an accident where he was hit on his motorbike and had a fracture of the left leg leading to subsequent amputation . Note is made from the available documentation that he was admitted to hospital on 10 January 1990 following an overdose of Tryptanol, after a break-up, 'broke up with girlfriend two days before and she had taken her son away as well'. This would be dated 8 January 1990. Note is made from Dr van der Westhuizen's report that his partner was a drug and alcohol abuser and it is likely that during the period of time of this relationship he had commenced intravenous drug use. There is a history of reported depression following his accident but also it is noted that he was able to return to work in the mid-1900's and worked for approximately two years as an aluminium joiner before his prosthesis broke and he experienced a back injury. It is my opinion based on the available documentation that his use of alcohol is not a consequence of his right leg fracture or of his left leg fracture. It is my opinion that his use of intravenous opiates is not a consequence of his right leg fracture or his left leg fracture. It is my opinion that his use of opiates appears to be related to a relationship in which he was involved and I agree with Dr Codyre's view that self-medication with intravenous opiates in people who suffer chronic pain is extremely rare. In my professional opinion I have examined many amputees and chronic pain sufferers and this would be the first instance that I have come across in New Zealand of a patient self-medicating whilst receiving prescribed pain medication as well. The subsequent development of Hepatitis C is directly related to intravenous (illegal) drug use. The Hepatitis C has produced liver failure and liver cancer. These are a direct consequence of his drug abuse and not an effect of his injury. It is well recognised in the psychiatric literature that alcohol dependency, cannabis dependency and opiate abuse and dependency are all multifactorial and are related to a variety of personality factors, genetic factors and sociocultural factors. It is in my opinion not possible to causally link his liver failure, hepatitis and intravenous drug use or his alcohol dependency or his cannabis dependency to his left leg fracture in 1986. In answer to question 3, it is my opinion that the Hepatitis C, depression and drug abuse are not causally related to the covered injury. It is my opinion that his depression which was noted to have been treated in 1988 and 1989 but he had actually stopped his treatment, it is noted that his overdose and suicide attempt which led to general seizures and hospital admission was 15 16 A reminder that this was a psychiatric review on the papers. Dr Codyre's report does contain some ambiguities (if not confusions) as between left and right leg but, seen in overall context, these do not of themselves appear to the Court to detract from his opinion. As he noted, he was the recipient (for the reasons he explains in his report) of a jumbled narrative. related to the break-up of his relationship with his partner, loss of his son and this is not causally related to his accident. (Emphasis added) Mr Baker's mother [50] The bundle of documents includes a brief statement from Mr Baker's mother which had been prepared by her for the review hearing. In that she said that: I would like to convey Brent's illness to you that I have witnessed since his accident in 1986. Brent was an active 25 year old who worked hard and loved playing all sports but his love was rugby league. He was an excellent player and well respected among his friends. The trauma of his accident and the operation of amputation his leg was heartbreaking. He was in Middlemore Hospital for about three months then sent home. This operation was not successful and at Xmas was admitted back for more operations. The pain he suffered was horrendous with two skin grafting operations over the weeks. This was unsatisfactory and took about three years to achieve a stable stump to use a prosthetics limb. During this time he became depressed and realised what he had lost with his work. He was a qualified plasterer and his sport that he loved. He had stump pain in the stump and phantom pain for the lost leg. He started to drink more and more to cope with pain and depression. He became addicted to drugs. This could be how he contracted the hepatitis C. All this stems back to the accident that started him down the road to distraction. Entitlement possibilities? [51] At the hearing I initiated some discussion with counsel about the entitlement possibilities for the estate under the Act. Counsel were not able to give a clear picture in that respect but subsequently assisted further (as concerned the utility of the appeal) in their supplementary submissions. [52] The points made by Mr Schmidt for the estate were that: (a) In September 2011 the Corporation had paid backdated weekly compensation to the estate following a review decision that there had been deterioration in Mr Baker's capacity to work and that had related to the period 30 November 2009 to 27 April 2011, to which was to be added an interest element; (b) If cover was got on appeal for the conditions at issue (drug dependency, hepatitis C and depression) his estate could claim backdated weekly compensation from (so he suggested) 25 June 1999 to 30 November 2009; (c) He also mentioned a funeral grant, the possibility of cover for attendant care and treatment costs; (d) Lastly there was the possibility of an ombudsman or Corporation supported ex gratia payment even be it that there would be no legal basis for a lump sum entitlement on account the absence of any relevant assessment grant at death. [53] Ms Becroft, when she thereafter responded for the Corporation, advised that it agreed that the estate would be entitled to claim for entitlements of the kind described by Mr Schmidt subject, of course, to a careful and thorough investigation. In short, the Corporation agreed that the disposition of this appeal was no exercise in futility. [54] Subsequently (on 2 April 2012), Mr Schmidt drew particular attention to s 126 of the Act which, as he had just noticed, says: 126 Corporation to pay amount to claimant's estate (1) This section applies to any entitlement (other than lump sum compensation under Part 3 of Schedule 1) that is a payment that the Corporation- (a) is liable to make to a claimant, but that has accrued and is unpaid at the date of the claimant's death; or (b) would have been liable to make to the claimant, if he or she had lodged a claim for it. (2) The Corporation is liable to pay any amount to which this section applies to the claimant's estate if the estate applies for it within 3 years after the date of the claimant's death. Case for the estate [55] Before turning to the issues at appeal, which as Mr Schmidt identified them where whether the Corporation was justified in revoking deemed cover for drug dependency and depression (14 October 2010) and deemed cover for Hepatitis C (28 October 2010), Mr Schmidt provided some further and helpful information for the purpose of better completing the overall picture. [56] He explained that he had been instructed in February 2010 in relation to Mr Baker's claims with the Corporation including a then impending review regarding deterioration of vocational independence. At that, a 10 March 2010 review, hearing he had handed to the case manager claims for: Cover for mental injuries (namely drug dependency and depression) resulting from Mr Baker's covered personal injury; Cover for hepatitis C relating to intravenous drug use arising out of drug dependency; and Backdated weekly compensation "on the basis of deterioration of Mr Baker's health due to drug dependency and mental health issues, including perhaps Hepatitis C". [57] As has been rehearsed, the letter also made a claim for backdated attendant care and an immediate lump sum assessment. [58] He had requested that the claims be investigated urgently on account Mr Baker's deteriorating health but Mr Baker had passed away on 27 April 2011 before any investigation was made. [59] Mr Schmidt then referred to the 30 July 2010 decision of the Corporation which, like that of 28 October 2010, referred to the Hepatitis C issue. The first declinature in that respect led to an application for review lodged on 26 October 2010. [60] Then followed the Corporation's decision of 14 October 2010 which also attracted a review application as did the decision of 28 October 2010 which at first blush looked like a rehearsal of that of 30 July" that year. [61] I now turn to the matters submitted or emphasised by Mr Schmidt. Revision of decisions [62] In the course of his submissions, Mr Schmidt referred to s 65 of the Act. As he noted, the Corporation's power to revise its own decisions extends to deemed decisions. [63] Section 65 of the Act reads: 65 Corporation may revise decisions (1) If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error. (2) The Corporation may revise a decision deemed by section 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of the Corporation, intentionally misleading. (3) A revision may- (a) amend the original decision; or (b) revoke the original decision and substitute a new decision. (4) Every amendment to a decision, and every substituted decision, is a fresh decision. (5) Sections 19-23 of the Crown Entities Act 2004 do not limit this section. 17 As was later clarified by Ms Becroft this 'decision' was actually made out of time and thus had no efficacy. [64] Rightly (for the basic principles enunciated in that case are surely as applicable to s 65 as to s 390) Mr Schmidt directed the Court to s 390 of the Act and the decision in Accident Compensation Corporation v Bartels's Power misused? [65] Speaking of the power vested in the Corporation by s 65, Mr Schmidt submitted that: The immediate revocations of cover that occurred here are at odds with Parliament's intention that there be a sanction for breach of the statutory timeframes. ACC's current approach to timeframe provisions renders the timeframes redundant and means that there is no effective sanction for lax conduct. It does not matter whether the Corporation investigates claims for cover or not, as they simply delay the deemed decision letter until the breach is brought to their attention and then revoke the cover granted in the same letter". At the stroke of the pen the statutory timeframes are rendered pointless. Counsel submits that the reason given here to revoke the cover, that the Corporation required more time simply does not constitute an error for the purpose of's 65; it is simply an acknowledgement that they failed to administer the Act or ask for an extension The reason given by ACC was concerning as there were compelling reasons to act promptly in that the claimant was very ill, there was an outstanding decision by a review officer to investigate these issues, and counsel was regularly corresponding with the case manager to advance the claim's process - and yet the timeframes were still breached. [66] Mr Schmidt went on to submit that at the time of the breach the Corporation had the reports of Dr Black (2 December 2009) and Dr Codyre (16 November 2009) which established a prima facie case for cover, so this was not a case of a claim for cover made without supporting evidence. [67] Thereafter the Corporation had received the report of Dr van der Westhuizen which also, it was submitted, supported Mr Baker's case. It had then referred matters to Dr Collier. The submission was that Dr Collier simply provided a differing opinion - one lit upon without any evident sign of a reasoned approach to the weight and worth of the overall advice then at hand. 18 [2006] NZAR 680 19 These assertions - being unsupported by actual evidence - would best not have been made. [68] Such a state of affairs could not in Mr Schmidt's submission fall within the four walls of s 65 as they could be taken to have been identified by Bartels: Hence the submission was made that there was no error to which the power to revoke could relate. Medical points pressed by Mr Schmidt [69] Mr Schmidt spoke first of Dr Gavaghan's VIMA report of 12 March 1999. He pointed out the reference there to an already developed dependency on analgesia and to the fact that Mr Baker's problems had led him to be sentenced to imprisonment in 1992. Apparently that was on account multiple drink driving convictions. Dr Gavaghan had observed that Mr Baker faced major psychological distress. He was working to some extent, but still not fit to return to full time work or to achieve independence. [70] He also referred to Dr Harry, who had reported on 27 August 2009 in her capacity as a consultant hepatologist at Auckland City Hospital that Mr Baker now had evidence of liver failure. She had recounted that he had started using injection drugs following his accident and persisted with the habit (as it had become) until a period of rehabilitation at Higher Ground in 1995. [71] As already mentioned in this judgment, he was not a candidate for liver transplant on account his ongoing level of liquor consumption. Seen a few weeks later he had been managing abstinence for that period, but remained very unwell. [72] Mr Schmidt then referred to Dr Codyre's report which has already been mentioned in some detail" so will not be thus rehearsed here. [73] He turned next to Dr Black's 2 December 2009 report, pointing to his observations of the parlous state in which he found Mr Baker to be. Mr Schmidt then moved to the report of Dr Gane", where (as I have previously recorded) he said: 20 See [19]-[26] above 21 Previously mentioned at [48] above. The aetiology of Brent's liver disease is chronic hepatitis C (HCV) infection, the presumed date being at the time of acute icteric hepatitis in 1990. Brent's hepatitis was acquired through previous injecting drug use. The progression of his chronic hepatitis C has been accelerated by very heavy alcohol use. Brent also has genetic haemochromatosis which in the context of heavy alcohol use has resulted in iron overload within the liver which also may have accelerated the progression of his chronic hepatitis C. Despite adequate iron unloading of the liver with regular venesection, however, Brent's liver disease has continued to progress, reflecting his active HCV infection. In summary, the cause of Brent's end-stage liver disease is chronic HCV infection, which has been accelerated by both long history of alcohol abuse and also by iron overload from the inherited disorder of haemochromatosis. The latter has been adequately treated by regular venesection since March 2000. Despite this, his liver disease has progressed to end-stage because of his active chronic hepatitis C and heavy alcohol use. Although he stopped alcohol use in 2009, his HCV infection remains active and continues to damage his cirrhotic liver. Because he is too sick to receive antiviral therapy for his HCV infection, unfortunately he will continue to deteriorate and his expected survival is now (less than) 2 years. (Emphasis added) [74] This, as Mr Schmidt then noted, prompted the Corporation's branch medical adviser to observe in an email to the case manager dated 28 October 2010 that "the cause of the client's liver disease is clearly independent of any injury and as a result there should be no ACC cover for liver disease which includes Hepatitis C or end stage liver failure". [75] Next, in terms of his review of the medical evidence, Mr Schmidt dealt with the report of Dr van der Westhuizen which he called "a report ... the polar opposite of the reports of the specialists who had previously interviewed and examined Mr Baker". [76] For completeness, he mentioned the VIMA report of Dr Dryson of 16 November 2010 which reported that Mr Baker could not perform any of the jobs identified by the occupational assessor on account his end stage liver failure and, in the case of the more physical occupations, the left leg injury of itself. Mr Baker before and after his accident [77] I preface my review of the points next made by Mr Schmidt with the acknowledgement that I accept (as well-founded on the evidence) Mr Schmidt's proposition that: The evidence is that Mr Baker was a long time rugby league player who obtained great joy and satisfaction from being a good player in a tough game. A large part of his social life was no doubt also bound up in the sport. He suffered a very serious injury, the required amputation. The injury robbed him of the sport he loved and the social network that came with that. That summary is surely indisputable and, indeed, was not contested by Ms Becroft. The psychiatric evidence reviewed [78] Mr Schmidt invited the Court to contrast the views of Dr Collier with (in particular) those of Dr van der Westhuizen in terms that: (a) Dr Collier had at every point downplayed the amputation as a serious injury and placed little weight on the significance of the ongoing pain suffered by Mr Baker, particularly during the extended period of about two years when several revision operations were required. (b) On the other hand Dr van der Westhuizen (who had of course actually seen and thus interviewed Mr Baker) clearly appreciated the obvious difficulties faced by Mr Baker with amputation and pain. (c) Dr Collier had inferred (in terms confounding without logical warrant Mr Baker's post-accident history) that the amputation, revision surgeries, use of prescription opiates, chronic and phantom pain and problems in getting the benefit of an effective prosthesis had had no significant impact on Mr Baker's life. [79] Mr Schmidt sought to have the Court consider peer reviewed medical literature as painting a very different picture of amputation and its sequelae, the papers identified being: Jette Hojsted and Per Sjogrenddiction to opioids in chronic pain patients: A literature review. European Journal of Pain 11 (2007) 490-518 Marisol A Hanley et al. Self-Reported Treatments Used for Lower-Limb Phantom Pain: Descriptive Findings. Arch Phys Med Rehabil 87 (Feb 2006) 270-277 Ann K Ketz. The Experience of Phantom Limb Pain in Patients with Combat-Related traumatic Amputations. Arch Phys Med Rehabil 89 (June 2008) 1127-1132 Olga Horgan and Malcolm MacLachlan. Psychological adjustment to lower-limb amputation: A review. Disability and Rehabilitation 26.14/15 (2004) 837-850 [80] It was Mr Schmidt's submission that, in general terms, the papers concluded that: Opiate based pain killers are effective when treating amputation pain but are addictive. When pain is out of control the use of illicit opiates is a known problem. In fact, most of the opiate screening questionnaires used to diagnose addiction identify the use of non prescribed opiates as a red flag for addiction (see pages 509-514 of the "Addiction to opioids" paper cited above - bundle pp. 134-139). Alcohol and marijuana are self medication options used by amputees, particularly where chronic pain and phantom pain are ongoing problems. These can be used either in conjunction with opiates, on their own, or in combination with other non drug techniques. Aggravating factors leading to the likelihood of increased use of opiates and other drugs are ongoing chronic and phantom pain and loss of major life roles. [81] He then argued that this literature supported not only the conclusions of Dr van der Westhuizen but also, to the extent of their materiality, those of Dr Black and Dr Codyre. [82] I note at this point that it has been said in this jurisdiction that medical literature may be of limited or even no assistance to the Court in the absence of an instructive contextual commentary from a suited to that task medical professional. [83] To the extent that in this case I give any attention to the proffered literature, I should not be understood to dispute the usual commonsense of that approach. One of a number of problems obvious in a Court placing untutored weight on such is that it cannot know how representative (if at all) of mainstream opinion the material brought forward may be. [84] In furthering his argument in support of Dr van der Westhuizen's views Mr Schmidt pointed out that as well seeing Mr Baker the doctor had seen his mother. He had - as Mr Schmidt rightly said was plain - carefully questioned Mr Baker and evaluated his responses, so the suggestion of Dr Collier that Mr van der Westhuizen had not provided a detailed forensic history was, counsel argued, pedantic and without practical substance. [85] Under my later 'Discussion' heading I will necessarily return to the reports in contest. For the meantime I simply record without comment one of Mr Schmidt's more trenchant criticisms of the Collier report which was expressed thus: ... Without reference to accepted medicine or logic, (he) asserts ... that he is in a better position to give a diagnosis and goes on to state that the use of intravenous opiates has nothing to do with the serious injuries, or the prescription of opiates for these injuries, or the complications with pain and surgery that followed, but is only to do with the relationship breakup. He makes that deduction solely on the basis that Mr Baker's girlfriend used illicit drugs. That reference is clearly most likely a reference to marijuana", with no one asserting a prior use of opiates... [86] Mr Schmidt then turned to the mother's letter and, as it is to be found at [50] above, I will not rehearse it here. What I will say is that it reads as a sincere and measured report by the mother of the consequences of the accident for her son. [87] Mr Schmidt's substantive submissions concluded in these terms: 68. With respect to the revision of the deemed cover decisions, the evidence in ACC's possession at the time of these decisions supported the claims for cover. No error of the kind (factual or diagnostic) discussed by the High Court in Bartels as being necessary to overturn existing cover decisions is in evidence. 69. The one voice of Dr Collier is a further opinion, sought to support the BMA's opposition to the claim. Overall, the testimonial 22 Which Mr Baker had in some, but not evidenced as highly significant, degree used pre-accident. evidence and the medical reports of those who interviewed and examined Mr Baker (as well the literature on the consequences of amputation and associated chronic and phantom pain) align with a common sense evaluation: that this was a very serious and painful injury that had a devastating effect on Mr Baker 70. It is far more likely that Mr Baker's post amputation depression, addiction to analgesia and resultant Hepatitis C were unfortunate consequences of the amputation and the complications arising afterwards. The evidence of Dr Codyre and Dr van der Westhuizen supports that conclusion. There is no evidence of prior opiate use or the abuse of prescription drugs. Because he was a young man whose life was largely based on his physical attributes and involvement in rugby league, the accident had a great impact on him. It left him significantly disabled and with chronic pain that was resistant to effective pain control. 71. For the reasons set out above counsel respectfully asks the Court to rule that: The decision granting cover for depression and drug dependency (opiates) (dated 14 October 2010) and the decision granting cover for Hepatitis C (dated 28 October 2010) be reinstated. Ms Becroft's submissions [88] Prompted obviously by the signalled pre-hearing argument of Mr Schmidt that the Corporation's approach to the revocations of cover in this case was at odds with Parliament's intention that there be a sanction for the breach of the statutory timeframes, Ms Becroft set out in her written submissions a very detailed (and in the event uncontested) chronology of what occurred between March and October 2010 which I now repeat: 2.20 On 10 March 2010 the Appellant's new Counsel, Mr Schmidt wrote to the Corporation claiming cover for mental injuries resulting from the covered physical injuries, in particular, drug dependency, and depression. A claim was also lodged for hepatitis C relating to intravenous drug use, arising out of drug dependencies. Further, Mr Schmidt claimed backdated weekly compensation on the basis of a deterioration in the Appellant's health due to drug dependency and mental health issues including "perhaps" hepatitis C. A claim for backdated attendant care and a lump sum assessment was lodged. 2.21 The Corporation subsequently began investigating the number of issues that had been raised. In the first instance, it requested information from the District Health Boards relating to the Appellant's medical conditions. This information was subsequently received on 28 May 2010, 16 June 2010 and 22 July 2010. 2.22 On 27 May 2010 Mr Schmidt wrote to the Corporation requesting an update with regards to the deterioration reassessment and also in relation to the cover claims for depression, drug dependency and hepatitis C. 2.23 On 28 May 2010 the Corporation responded and advised that it was still waiting on medical notes before it could make decisions on cover, and reassess the Appellant. 2.24 On 17 June 2010 Mr Schmidt wrote to the Corporation again advising that both issues should be dealt with urgently, as the Appellant was seriously unwell. 2.25 On 16 July 2010 the Corporation wrote to the Appellant explaining the reassessment process, and advising that he was to be referred for reassessment. 2.26 The Corporation wrote to Mr Schmidt again on 16 July 2010 explaining that it was continuing to investigate and obtain the relevant medical records, particularly for periods in the late 1990s and early 2000s, when the Appellant was not actively case managed, and for which there was scant medical information on file. The letter indicated that there had also been delays due to the Appellant's failure to respond promptly to the Corporation's request for information (the VI Claimant Questionnaire). The Corporation advised that due to the exceptional circumstances it would proceed to reassessment, even though not all of the relevant medical information was to hand. 2.27 On 30 July 2010 the Corporation (purported to decline)" the Appellant's claim for hepatitis C. 2.28 The Appellant applied for a review of that decision on 28 August 2010. 2.29 An Occupational Assessment was completed by Mr Birchfield on 17 August 2010. He identified a broad range of skills and identified 14 job options that would be suitable. 2.30 On 17 September 2010 Mr Schmidt lodged an Application for Review in respect of the Corporation's "failure to issue a decision on weekly compensation in a timely manner" 2.31 On 20 September 2010 the Corporation advised Mr Schmidt that the Appellant was scheduled to be assessed in relation to the cover applications that week (there was subsequently difficulties in scheduling that assessment due to the Appellant's health and other unforeseen circumstances). 23 See 2.38 over and the Court's interpolation (identifiable on account the different typeface). 2.32 A Psychiatric Report was completed by Dr Van der Westhuizen on 6 October 2010. The report essentially, loosely linked the Appellant's conditions of hepatitis C, and the mental injuries of depression and drug dependency to his covered injury. 2.33 Dr Jansen, the Corporation's Senior Medical Advisor reviewed the report and was unconvinced by its treatment of causality. He recommended obtaining a further report to peer review both Dr Codyre and Dr Van de Westhuizen's reports; he recommended Dr Collier, Psychiatrist. 2.34 In a letter dated 14 October 2010 the Corporation advised the Appellant that as it had not issued decisions on cover within the required timeframe, he was entitled to a deemed decision pursuant to section 58, for mental injuries (drug dependency and depression). The same decision revoked cover for the mental injuries, stating: "ACC was not satisfied based on the evidence to date that you have cover for a mental injury, being depression and drug dependency." 2.35 The Appellant subsequently applied for a review of that decision. 2.36 On 28 October 2010 Professor Gane, Hepatologist commented on the Appellant's case advising "The cause of Brent's end stage liver disease is chronic HCV "Hepatitis C) infection, which has been accelerated by both a long history of alcohol abuse and also by iron overload from the inherited disorder of haemochromatosis." 2.37 Dr Burgess, BMA, reviewed Dr Gane's report and recommended declining cover, as the disease "is clearly independent of any injury and as a result there should be no ACC cover for the disease." 2.38 On 28 October 2010 the Corporation issued a further decision letter acknowledging a deemed decision for the hepatitis C claim (while the Corporation (had) declined this claim (on 30 July 2010) they did so after the statutory timeframe had expired). In the same letter it revoked and declined cover for the hepatitis C on the basis of the medical evidence available, which indicated that hepatitis C was a non injury related condition. 2.39 The Corporation indicated that it would continue to investigate the matter and revise its decision if necessary 2.40 The Appellant lodged a further review application against that decision. 2.41 Dr Collier reported on 12 November 2010 considered the issue of causation in relation to the claimed injuries and opined that the Applicant's hepatitis C, depression and drug abuse were not causally related to the covered injury. (Emphasis added) [89] In her submissions Ms Becroft highlighted these points: The cover for mental injuries (drug dependency and depression) and hepatitis C had been sought on 10 March 2010. On 14 and 28 October 2010 the Corporation had advised Mr Baker of leemed cover in those respects on account of its breach of the determination time limits. In terms of the statute the date of such deemed decisions was the date of expiry of the relevant time limit which was (advised counsel) in the case of the hepatitis C was from 31 March 2010 and the mental injury (drug dependency and depression) from 10 May 201024. [90] Section 65 of the Act (empowering the Corporation to revise decisions that it considers it made in error by amending or revoking such or substituting a new decision) specifically allows the Corporation so to act in the case of a decision deemed by s 58 to have been made in respect of any cover claim. [91] Ms Becroft referred to the already mentioned case of Bartels. That case was decided in reference to s 390 (a transitional provision dealing with the Corporation's power to review decisions made under prior legislation) but as I said earlier there is no material to the present case difference between its and s 65's terms. [92] Thus what was said in Bartels of the proper approach to s 390 illuminates in general terms the usually apposite approach to s 65. [93] In Bartels the High Court said at [31] that Parliament's intention was that: The Corporation can today, with factual and other material it now has, look back at the decision previously made and decide if it was "made in error"... [94] Then at [33] it added: 24 The decision itself refers to 31 March 2010 but Ms Becroft would have had in mind the 2 month period permitted for decision-making on complicated claims for which s 57 provides. ... The purpose of s 390 is to ensure that where decisions previously made are clearly made in error that those decisions not be left to advantage or disadvantage either claimants or the Corporation. This is a publicly funded insurance scheme for those who suffer personal injury by accident. Those who suffer personal injury by accident should have cover under the Act and those who do not should not get cover when none is due. Section 390 is a backstop for both claimants and the Corporation when all else has failed (for example the formal claim/appeal system) and yet a decision has been made that is in error. The section's purpose, therefore, is to ensure that such a decision does not stand where it can be established that the decision has been made in error. [95] The Court then went on to elucidate what, in this context, would amount to an 'error' by saying at [34] this: ... A decision will not be made in error if there are credible differences of opinion between experts. "Error" requires the identification of factual material significant to the original decision which has now been exposed to be clearly wrong. It will not be sufficient to establish error for others to have a different opinion unless the new opinions are based on fresh or new evidence which was not in the possession of the original decision-makers and which undermines their decision to a degree from which one can conclude, with that information, that their decision was clearly wrong. [96] That advice cannot be applied to a deemed decision, for that arises from no more than the effluxion of a statutory time limit (and so requires no evidence or opinions at all). Most certainly it is not the product of any kind of assessment of, available at the time, evidential materials. So, using the expression in a different from the usual way, 'there is no room for error'. [97] The obvious purpose of the deemed decision regime is to keep the Corporation on its toes and ensure that claimants do not suffer on account undue delay. But Parliament cannot have intended that a "disciplinary" provision should commit the general body of ACC levy payers to the long-term funding of an actually turning out to be unwarranted claim or entitlement. In fact, and by gathering deemed decisions into the net of's 65, it has provided for a considered revision when and as required or justified. [98] I mention here that if a deemed decision should subsequently be revised under s 65, claimants have the protection of subs (2) which it says that the Corporation may not recover from claimants any payments made before the revision unless gained as a result of claimants intentionally misleading it. Moreover, a revised decision can be reviewed. [99] Yes, the s 65 mechanism was used here when the Corporation had yet to turn to Dr Collier for his views but, in my view, Mr Schmidt's point (one not fully argued on both sides) of the case is best left for another case where its determination is crucial to the outcome - a state of affairs which does not prove to be the position here. [100] Thus all (and not definitively) that I will say on this issue is that in light of Ms Becroft's chronology it could be argued that: The 30 July "decision" can be put aside for the very reason put forward on behalf of the Corporation, namely that it issued when the "deemed decision" provisions were already operative and so supervening. It is not the case that at the deemed as the effective dates of the deemed decisions (March and May 2010") the Corporation was properly equipped to make reasonable decisions in respect of any of the then raised heads of cover sought - not in respect of depression nor either drug dependency or hepatitis C. In that state of affairs, there was nothing necessarily wrong, let alone capable of categorisation as involving cynical behaviour, in the Corporation on the same day and in each case first recording "deemed cover" and in the next decision letter breath revoking that. That because, in law, Mr Baker had in fact gained the benefit of deemed cover in the one case on 31 March and the other on 10 May 2010. 25 See [90] above. Thus all that the decision letters conveyed in that respect was a formal acknowledgement of a deemed by statute efficacy from the March and May respectively; and In a case of this particular kind the principles enunciated in Bartels have no comprehensive application. Drug dependency (case for Corporation) [101] Ms Becroft dealt first with the drug dependency issue. She relied on the ex post facto report" of Dr Collier who had, she said, written of: Mr Baker appearing to have commenced cannabis consumption as a teenager and to have been a regular user of alcohol before his injury; and that his partner was a drug and alcohol abuser so it was likely that during their relationship he had commenced intravenous drug use. A history of reported depression?. Self medication with intravenous opiates in people who suffered chronic pain being extremely rare. Having examined many amputees and chronic pain sufferers with this being the first instance that he had come across of a patient self medicating whilst receiving prescribed medication as well. On these accounts Ms Becroft submitted that it was right for the court to hold that there was no good evidence upon which to conclude that Mr Baker's drug dependency was suffered by him because of his physical injuries. 26 Relative to the deemed decision date. But none arising pre-accident has been reported. Depression (case for Corporation) [102] She then turned to depression and once again turned to Dr Collier and his criticism of Dr van der Westhuizen's assessment. She noted that Dr Collier had been firm that: Diagnosis of major depression was untenable in the presence of significant methadone use, cannabis use and the presence of liver failure; Dr Van der Westhuizen had made no reference to evidence to support a diagnosis of anxiety or generalised panic; Chronic pain disorder was likely but not PTSD; Depression was noted to have been treated in 1998 and 1999 but he had actually stopped this treatment; His overdose and suicide attempt which led to general seizures and hospital admission were related to the partnership breakup. [103] The essence of Ms Becroft's submission here was that, while it was accepted that Mr Baker had suffered periods of depression, Dr Collier plainly did not accept that this was directly or causally related to the amputation. Rather there had been a number of non-injury-related factors influencing his mental state including the relationship breakdown, the consequential loss of the child and the drug use issues. (I observe here that, read as a whole, Dr Collier's report could be categorised as having more of the features of a competing assessment than, in strict terms, a peer review comment: certainly, it was used in counter-weight fashion in the argument of the Corporation's case. [104] Ms Becroft then reverted to the depression issue, rehearsing Dr Collier's critique of Dr van der Westhuizen's conclusions and the premises (generally said to be absent) therefor. She also rehearsed her arguments on the drug dependency issue. Hepatitis C (case for Corporation) [105] Here she submitted that, in a non-work or treatment related case like the present, personal injury could not include such as was wholly or substantially caused by a gradual process, disease or infection under s 20(2)(e) and (cf). Nor either - she argued - under (g) which covers "personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover", or (h) which covers the like but is consequential on treatment given for injury which there is cover. [106] Here she rehearsed what Dr Collier had said: The subsequent development of hepatitis C is directly related to intravenous (illegal) drug use. The hepatitis C has produced liver failure and liver cancer. These are a direct consequence of his drug abuse and not an effect of his injury. It is well recognised in psychiatric literature that alcohol dependency, cannabis dependency and opiate abuse dependency are all multi factorial and are related to a variety of personality factors, genetic factors and sociocultural factors. It is in my opinion not possible to causally link his liver failure, hepatitis and intravenous drug use, or his alcohol dependency or his cannabis dependency to his left leg fracture in 1996. [107] In his view the hepatitis C had progressed over the years (since the 1990's) assisted by the continued use of alcohol and his inherited haemochromatosis. He saw no causal link between the hepatitis C and the motor cycle accident injuries. Mental injury (case for Corporation) [108] Ms Becroft noted that in terms of s 26 of the Act personal injury includes a mental injury suffered by a person because of physical injuries suffered by the person. [109] Section 27 then tells us that 'mental injury' means a "clinically significant behavioural, cognitive or psychological dysfunction". [110] Her submission was that, operating under s 65, the Corporation had correctly revoked cover for drug dependency and depression based on the available medical evidence. [1 11] In critiquing the mental injury case for Mr Baker, Ms Becroft also referred to Dr Codyre's 16 November 2009 report (the essential substance of which is described at [22]-[24] above). [112] In doing so Ms Becroft emphasised: Dr Codyre's concession that he was providing a preliminary opinion only; and argued That in fact he appeared to relate the various mental injuries to the life consequences for Mr Baker (in the support, relationship and parenthood areas) rather than to the physical injuries suffered in the motor cycle accident. [113] Ms Becroft added that Dr Codyre had not considered the drug and alcohol dependence to be injury-related and that "by default" he did not consider the hepatitis C to be drug or injury related28 [1 14] And when it came to Dr Black (reporting on 2 December 2009 on Mr Baker's work capacity) she argued that he was, after all, an occupational specialist whose report had that focus, and (she contended) could be of but limited probative value in the present context. [115] She then came back to Dr van der Westhuizen and his October 2010 (original" and revised) reports. She was critical of the original form of the report in terms that while it was detailed in terms of background it was "incredibly brief" in terms of the consideration of both diagnosis and causation. [1 16] As to the causation, she said that all the doctor had provided was that: Brent has suffered from a mental injury - that is depression, pain and drug abuse causally linked with the physical injury from the motor bike accident in 1996. The physical injury is a material necessary cause of the current medical condition. In fact there was no 'default'. Dr Codyre specifically recognised real causation problems with any endeavour to link the hepatitis to the physical injury. 29 As already indicated, the Court's focus has been on the revised version. [117] She underscored her criticism of Dr van der Westhuizen's approach by arguing that he had not factored in here the possible contribution of the non-injury related elements. The absence of a personality assessment and symptomatic inquiry by Dr van der Westhuizen - something to which Dr Collier had drawn attention - rendered his conclusions flawed. [118] As far as his revised report was concerned, she argued it added no significant detail in relation to causation but saw that (as the Court has already rehearsed) it had this on dementia: Brent is suffering from depression, pain and drug abuse. Although it is recognised that the accident was causal to much physical and emotional suffering; it is tedious (sic) and impossible to link his dementia at present indirectly to a circuitous pathway of speculation of accident-causing Post Traumatic Stress Disorder (which, if present) is masked by the severity of his dementia, causing drug abuse, causing hepatitis, causing dementia." [119] To Ms Becroft this meant that all the revised report had served to accomplish was a highlighting of an 'already circuitous pathway' that Dr van der Westhuizen had relied on in reaching his conclusions that there was a causal connection between the appellant's mental injuries and the covered physical injury. Mental injury [120] I preface what follows by recording that neither counsel's submissions addressed in any kind of detail the niceties of the examination of the scope of "mental injury' under the Act nor, for that matter - and as regards this and the succeeding topics of drug dependency and hepatitis C - issues of causation and remoteness. Seemingly, they were content to leave all those to the Court. Discussion (mental injury) [121] Section 6 of the Act provides that "mental injury" has the meaning set out in s 27. Section 27 says: Axis II. In fact Dr van der Westhuizen did identify dependent personality traits which in the revised report he said were diagnosed clinically. 31 See 2 just above. "Mental Injury" means a clinically significant behavioural, cognitive, or psychological dysfunction. [122] The commentary to s 27 in Thomson Brookers Personal Injury in New Zealand at AC 27.03 points out that the expression "mental injury" was taken from DSM III. [123] It goes on to propose that while the Corporation has taken the view that the fact of a 'mental injury' is only established by the diagnosis of a psychiatric condition included in DSM IV, the statutory definition, with its requirement of but 'a clinically significant dysfunction', can clearly be met by a condition that does not need a DSM IV category. [124] I agree. If Parliament had intended that DSM III or its successors should rule then it would surely have said so. [125] The commentary suggests that: If a scale could be envisaged from transient emotional trauma through to recognised psychiatric condition then a clinically significant dysfunction would certainly be at the upper end of that scale but could still fall short of a DSM IV category. On the other hand, it is clear that transient emotional trauma such as feelings of anger, humiliation, fear, embarrassment, shock etc will not be considered a mental injury as they are not clinically significant. I hold those to be reasonable and helpful observations. [126] Black's Medical Dictionary (42" edition) speaks of clinical depression as being best defined as a 'collection of psychological symptoms including sadness; unhappy thoughts characterised by worry; poor self-image; self-blame; guilt and low self-confidence; downbeat views on the future and a feeling of hopelessness'. [127] It also observes that a real depressive illness rarely has a single obvious cause, but that observation is immediately followed by reference to exceptions, each of which would be identifiable as a significant life event. [128] It must be the case that to suffer (simply through being on the wrong spot at the wrong moment) an injury and consequences as horrendous as was Mr Baker's lot was to suffer a truly significant life event. [129] Section 26(1)(c) of the Act provides that: Personal injury means - . .. (c) mental injury suffered by a person because of physical injuries suffered by the person. [130] At this juncture I record that with great respect I would count as unduly confining (if what was said was intended to go beyond the case at hand) the observation of Judge Cadenhead in Seddon' that: It is necessary for a claimant to show on a probability basis that the mental injury was directly caused by the physical injury suffered. Indirect causation, such as brooding or worry, is not sufficient... (See [23].) [131] I endorse the textbook commentary example of an athlete suffering from depression over a broken leg that puts him out of the Olympics as surely a classic case of a mental injury suffered because of physical injuries. Speaking more broadly, it must be a case specific matter of fact and degree. [132] I would also respectfully endorse 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. (That judge also noted that each case required to be considered on its own facts.) [133] I now refer to Hornby v Accident Compensation Corporation", a judgment of the Court of Appeal not mentioned by either counsel. The issue originally before the High Court (arising in the context explained in the next paragraph) was the Seddon v ACC 8/10/04, DC Wellington, 320/04. ACC v Griffith, DC Wellington, 8/4/09, 19/5/09. [2009] NZCA 576 meaning and effect, as regards the suffering of a mental injury, to be given to the expression "because of physical injuries" in s 26. [134] 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. [135] Cover had been afforded her in relation to her physical injuries. Just short of four years after the accident she sought cover for mental injury arising from the break. Her claim had then been declined on the basis that her mental injury was not consequential on the physical injuries. [136] 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 or" 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?" 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. [137] Under the heading "Discussion" the Court of Appeal said this: There is no evidence to suggest that Mr Baker suffered from any kind of mental condition or injury before his accident. [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 actor 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 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 36 Meaning, obviously, in the given circumstances. 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) [138] To go back to s 26(1)(c) and the phrase "because of" I note in respect of Hornby that in the High Court" the Court held that, when testing for the requisite connection, the phrase should be read as "results from". [139] In Hornby the appellant already suffered a major depressive disorder when she had her accident. Thus, as it was held, her injuries had not caused her depression. But this is not such a predisposition case - far from it. Ambros and this case [140] At [63] in Ambros it was said that: While Atkinson" is clear that in New Zealand the legal burden to prove causation in Accident Compensation cases remains with the claimant and does not shift to the Corporation, the case does not rule out a shift of the evidential burden, in either of the senses set out at [55], passing to the Corporation. [141] Here the Court was adverting to its previous recognition that the term "evidential burden" is commonly used to refer to two quite distinct notions: the first, that of adducing evidence to avoid the risk of disposition in favour of the opponent; and the second to the burden resting upon a party appearing to be at risk of losing on a given issue at a particular point in the trial - the "tactical" burden. HC Wellington, CIV-2008-485-763, 10/9/08, Dobson J. 39 ACC v Ambros [2007] NZCA 304 Atkinson v Accident Rehabilitation Compensation and Insurance Commission [2002] 1 NZLR 374 (CA) [142] The Court of Appeal went on to express its support for the view that a tactical burden passed to the defendant (here the Corporation) when some evidence of causation had been adduced by the plaintiff (here effectively the appellant). [143] At [65], and under the heading "Inferences", Ambros then observes that courts usually proceed on their general impression of the sufficiency of the lay and scientific evidence to meet the required standard of proof, it then being added that: The legal method looks to the presumptive inference which a sequence of events inspires in a person with common sense. [144] Thereafter at [66] an important distinction is made between the legal approach to causation and that of the medical or scientific world, the position at law being that the cause is not the sum of the conditions which are jointly sufficient to produce the occurrence. [145] For as the Court said at [67]: 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 on the whole of the lay, medical and statistical evidence, and not be limited to expert witness evidence... (Emphasis added) [146] Further points are then made in the following 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 third that the generous and unniggardly approach referred to in Harrild may support the drawing of "robust" inferences in individual cases. 10 Harrild v Director of Proceedings [2003] 3 NZLR 289 at [19] (CA). [147] 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. [148] 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 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 'because of'. [149] The application of a commonsense approach found favour (in decidedly wide in application terms) in the Australian High Court decision March v Stramare. " As is recognised in the discussion of that case in Fleming's The Law of Torts (10" edn), it subsequently received decidedly mixed reviews and fell victim to a measure of statutory abrogation. But I find Fleming's discussion to lend real weight to the utility of a commonsense approach in the particular context of the Accident Compensation Act, the criticisms and reaction notwithstanding. [150] Fleming says at 230: The question to be asked is "whether a particular act or omission ... can fairly and properly be considered a cause of the accident". This approach recognises that a person should not be liable for every wrongful act which is a necessary condition of the harm suffered. The "but for" test was not replaced. Rather, the common sense this approach recognised was that the "but for" test was neither a comprehensive nor an exclusive test of causation in tort. Its proper role, necessarily limited as a negative criterion of causation, was retained. The common sense approach to causation articulated in March y Stramare was not new. Rather, the approach saw a return to what arguably were the historic roots of causation. The re-assertion of this approach was significantly driven by the recognised limitations of the "but for" test, which, as mentioned, was largely ineffective where more than one circumstance was sufficient to bring about the harm sustained by the plaintiff. In such situations, the unabridged application of the "but for" test meant that causation in fact would not be made out*. See s 3. (1991) 171 CLR 5 But see [151] below. There was also dissatisfaction with what was considered to be a two-stage, formulaic, approach to determining "causation in fact". The first stage involved the application of the "but for" test, in which value and judgment were said not to play a role. The second stage was the policy and value-laden determination of whether the defendant should be legally liable. The focus in the common sense approach, on whether the negligent act or omission could fairly" and properly be considered a cause of the accident, gives due recognition to the role of value judgments in determining causation in fact. The "informed" intuition of the decision-maker is acknowledged as an integral part of the fact finding process. On the common sense approach to causation the attribution of legal liability, that is, whether the defendant's negligence caused the harm, depends upon the scope and purpose of the duty of care that is owed, sometimes referred to as the relevant rule of responsibility. The relevant rule of responsibility is not a factual question, it is the legal question upon which liability for negligence is based. The "common sense" approach to causation in the sense explained above remains the central plank upon which the common law of causation stands in Australia, although it has attracted criticism, perhaps, because it was perceived as too readily facilitating findings of causation. The danger that is seen is of a tendency to elide breach of duty and a foreseeable result of the same type of outcome or even worse, to descend to mere assertion of a common sense causal connection. The problem however lies less in the test than in its misapplication, perhaps reflecting a lack of appreciation of its underlying jurisprudence. A common sense 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 evaluating nature of the fact finding exercise, which itself must be logical but, and this is fundamental, does so within a specific legal context. It is at this point that the writings of Lord Hoffmann are particularly relevant. Causation is responsive to the content of the duty of care" or as his Lordship would have it, the relevant rule of responsibility. When that is recognised, the common sense approach to causation, as articulated in March v Stramare, supplies a relevantly principled solution to the question whether, as a matter of law, a defendant should be liable for conduct that has been adjudicated to be wrongful. It also gives the "but for" test of causation its proper role as a negative criterion whilst accommodating the very real inadequacyes of that test, discussed below. It also avoids the complications inherent in formulaic or prescriptive approaches to causation discussed in March v Stramare. (Emphasis added) 14 Note that fairness is an in some degree explicit and otherwise implicit theme of s 3. Thus the commonly expressed proposition that (except in equity) fairness is not a cornerstone of the civil law (e.g. certainty may be more important) can be said to be modified by the statute. The Act is a successor of that which originally removed the right to sue. When that right remained alive liability could also be imposed where the injury entailed wholly unexpected sequelae (but subject, of course, to questions of pre-existing conditions or traceability to causes unassociated with the accident) - see Fleming at 248. [151] On the following page, Fleming discusses the problems of any 'but for' approach in cases of (where actually or arguably arising) multiple causes saying that "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". [152] As to scope of risk (described by Fleming at 249 as the central notion of liability for negligence) I first of all note that the Act itself is alive to this point - for example, see how Fleming's example of aggravation of injury by medical mistreatment fits in with s 32 and treatment injury as well as the directly in issue here s 26(1)(c). The case at hand [153] The most complete history of Mr Baker is that obtained by Dr van der Westhuizen from Mr Baker himself which is set out at [39] above. He also, and meticulously, summarised the then available medical reports and had the benefit of input from Mr Baker's mother. [154] As I mentioned at [19] the history recorded by Dr Codyre had included that before the accident Mr Baker had been an active rugby league player at quite senior level with no history of mental health or addiction issues. [155] Speaking in November 2009 Dr Codyre had opined (for a brief summary see [22]-[24] above) that within the limitations of his assessment there was almost certainly a mental injury caused by the physical injury. [156] He had said that major depression was recognised as a frequent co-morbid complication of chronic pain disorders and also, and importantly, where there was a contribution (as he saw to be the case here) of injury-related impairment and disability. [157] He had gone on to say that in his opinion there was sufficient evidence to suggest that the depression (the presence of which he identified) was causally linked to the injury - his qualification being in the direction of the need for a more comprehensive assessment. [As has been noted the Corporation did not follow up on this until it referred Mr Baker to Dr van der Westhuizen late in 2010.] [158] One of the questions put to him by the Corporation was whether Mr Baker did have a clinically diagnosable mental condition in terms of the DSM IV diagnostic criteria. [159] Here I remind myself that (whatever be the approach or practice of the Corporation) neither DSM IV nor any other specific form of psychiatric diagnostic measuring stick features in the definition of 'mental injury'. To the contrary (and no doubt on account the acute difficulty of line drawing in this area ) it is a fairly commodious definition. [160] The point is significant given that one of Dr Collier's criticisms is that Dr van der Westhuizen did not adhere to ACC 2059 which comprises no more than an ACC website published set of guidelines. They cannot operate so as to modify the statutory definition of 'mental injury' or nullify an opinion not strictly based on such as DSM IV criteria. [161] Given that a diagnosis of depression is obviously not one that can be made simply by, as it were, ticking boxes relating to strictly objective signs, that of an examining psychiatrist will inevitably be driven by the clinical assessment. [162] Given what in the Court's view is a very thorough and thoughtful report indeed, the Court struggles to recognise that the van der Westhuizen report is, in some way actually pertinent to the metes and bounds of's 26(1)(c), flawed. [163] In the Court's view, the evaluation by Dr van der Westhuizen is logically persuasive. It self-evidently supports the conclusion that a clear and of itself substantial linkage is recognisably between the physical injury (and what went with it) and a mental injury of or in the nature of depression. 46 The Rules Committee faced a similar quandary when writing the current rules concerning litigation guardians and (after consultation with the psychiatric branch of the medical profession) opted simply to refer (r 4.29) to 'mental impairment' in reference to, relevant to the proper conduct of litigation, consequences. [164] Dr Collier did not have any opportunity to make any kind of clinical assessment at all - he was never asked to see Mr Baker. He who spent actual and very significant time with him was Dr van der Westhuizen. And, before him, there was Dr Codyre whose originally solo views have turned out to coincide with those of Dr van der Westhuizen. [165] In commenting on the views that had been expressed by Dr Codyre, Dr Collier spoke of his colleague proceeding on limited information which, of course, Dr Codyre himself had made plain was the case. Be that as it may, and as I observed just above (using other words) essentially the views expressed by Dr Codyre are those later expressed in much more detail by Dr van der Westhuizen. [166] Dr Collier's critique of the van der Westhuizen opinion is replicated at [48] above. It is first of all important to recognise that his critique of that opinion was one made by him very much in the light of DSM IV. The Court appreciates that these American manuals have a significant status within the medical profession, but they do not (as has already been pointed out) figure in the definition of "mental injury". [167] Dr Collier considered Dr van der Westhuizen's diagnosis of major depression as untenable in the presence of significant methadone use, cannabis use and the presence of liver failure. But he does not elucidate in that respect. [168] Dr Collier's ultimate views are set out at [49] above. I note, more generally, that a significant number of the matters Dr Collier remarks upon, speculates about, or suggests to be inferential relate to matters not directly connected to the mental injury issue so much as to other elements of the claim to which I must in due course refer. [169] What at this point I do record of his views, so far as the issues currently under examination are concerned, is that he says (in a sentence which is less than easy to parse) is this: It is my opinion that his depression which was noted to have been treated in 1988 and 1989 but he had actually stopped his treatment, it is noted that his overdose and suicide attempt which led to general seizures and hospital admission was related to the break-up of his relationship with his partner, loss of his son and this is not causally related to the accident. But these views, as I reiterate without criticism, are not those of somebody who has had direct access to the patient, let alone to the totality of the evidential material now before the Court. [170] With respect (in that seemingly crucial to the essence of his views but yet difficult sentence) Dr Collier draws conclusions at a distance at least once removed from Mr Baker and (again no criticism in this particular respect because it was outside his brief) without having seen, heard and questioned either Mr Baker or his mother. Thus he lacked the opportunity (which I would have considered of the essence here) to make a true clinical judgment. [171] In that state of affairs, and with all respect, I cannot place any significant weight on his opinion concerning causation. Nor can I follow the logic that because, at an earlier point, Mr Baker may have stopped treatment for depression that put paid to any room for a diagnosis of injury related depression at a later (the Codyre and van der Westhuizen examinations period) time. [172] Judicial notice can surely be taken" of the fact that depression (once caused) may come and go - may abate and then be aggravated. Indeed that was the case in Hornby. [173] In the present case the reports of Dr Codyre and (most particularly and comprehensively) that of Dr van der Westhuizen convey that these two specialists have applied medical science in a commonsensical way in making a plain and distinctly palpable connection that is substantial between the accidentally inflicted injuries and the onset of a clinically evident depression that in itself meets the wider in its scope s 27 definition of 'mental' injury. 47 Applying s 128 Evidence Act 2004. [174] It is surely obvious from the Black's definition of depression that, as one would expect, it is a mental injury the particular manifestation of which will never be simple with, most likely, no two presentations ever being the same. [175] I reject Ms Becroft's assertion that Dr van der Westhuizen did not "factor in" the possible contribution of non-injury related elements. Read as a whole - instead of with but a focus on its conclusion - it is obvious from his report that all that was or might have been relevant was given due attention. [176] He did not, as is inferentially plain from his completely contrasting observations on the separate topic of dementia (see [118] above), tread (as counsel suggested) some "circuitous pathway of speculation" (see [119] above) in reaching his clinical depression diagnosis. [177] The July 1986 accident (resulting in severe leg injury leading to amputation event) can, without need to be particularly robust, be identified (given the Codyre and van der Westhuizen evidence coupled with that of Dr Black and assessed against the evidence of Mrs Baker and her son's account of his life post accident) as a highly significant, and indeed most probably the principal, contributor to his mental injury of depression. [178] Dr van der Westhuizen's obviously assiduous attention to this case in all its facets has in my view resulted in a very soundly founded set of persuasive conclusions reached by careful diagnosis and an appreciation of commonsense principles of causation. [179] The depression in this case is identifiable as having arisen "because of" (the language of the Act) - as having "resulted from" (the interpretation of Dobson J in Hornby) - an accident befalling a young man who, before that tragic day, looked forward to a healthy, useful work and enjoyable recreation filled, life. [180] In none of my observations on the issues of diagnosis and causation have I overlooked the 'baggage' that comprises all else that beset Mr Baker, or the unfortunate life journey into which he fell after the accident. [181] But in my view that baggage does not - as Dr Collier seemed to contend - serve to render the original, and obviously overwhelming and ongoing in their ramifications, contribution of the original physical injuries to the emergence of mental injury somewhat redundant. [182] Anyone, whatever their innate personality, could surely and easily fall prey to persisting depression or its ilk after suffering the injuries that were Mr Baker's undeserved lot. That for this man the result should be the actuality of clinical depression cannot, in all commonsense, surprise. [183] In short, Ms Becroft's responsibly pursued efforts to have the Court prefer (and by a margin) the once removed from any direct clinical examination of Mr Baker views of Dr Collier over the other, pertinent to depression, medical evidence and lay evidence cannot be rewarded. [184] The medical evidence preferred by me (for the reasons I have sought to express) and a commonsense view of the substantially uncontested factual narrative drive (to use next the Ambros language) the presumptive inference that a real and significant cause of the clinical depression (which I find Mr Baker to have fallen victim to) was the accident in 1986 for which he had cover (as now does his estate) from the Corporation. Mental Injury because of physical injuries established [185] For all of these reasons I would hold that Mr Baker's covered personal injury in this case resulted in a mental injury manifest in a form of depression. Drug dependency [186] Dr van der Westhuizen noted" that Mr Baker had started taking copious amounts of drugs and alcohol to help with his chronic pain which surgery and other pain relief did not assist. 48 See [39] above. [187] In terms of the timing of events, the report of Dr Gane" is helpful where he says: The aetiology of Brent's liver disease is chronic hepatitis C (HCV) infection, the presumed date being at the time of acute icteric hepatitis in 1990. Brent's hepatitis C was acquired through previous injecting drug use. The progression of his chronic hepatitis C has been accelerated by very heavy alcohol use. This may usefully be compared with van der Westhuizen's 'circuitous pathway' observations recorded at [118] above. [188] I acknowledge that the Gane advice strongly indicates that Mr Baker's descent into drug (including intravenous) use must have begun relatively soon after the accident, but I then revert to this from Dr Codyreso .. the addiction issues which evolved, and in many ways were the biggest ssues both then (in terms of consequences in his life) and now (in terms of subsequent hepatitis C and cirrhosis of the liver), are harder to causally link o the physical injury. Prescribed opiate dependence is common in chronic pain, but abuse of illicit opiates is much rarer. Likewise alcohol abuse is not incommon in the face of chronic pain, but alcohol dependence rarer. There is less in the psychiatric literature to clearly support potential causal inks to physical injury, as opposed to injury as a stress which precipitates conditions to which there was prior significant predisposition. [189] Mr Schmidt had drawn attention to a section of an opiate screening questionnaire (a very extensive one) set out in one of the papers he proffered and apparently used to diagnose addiction in the context of the taking of non-prescribed opiates by chronic pain patients. [190] At Mr Schmidt's urging I have read each of the earlier identified papers, including that of Hojsted and Sjogren'siven the latter's scope (it relates to acute pain and cancer pain generally) I could not rely upon anything it conveyed in the absence of expert guidance: my reservations in this area have already been mentioned. [191] The Hanley et al paper does refer to phantom limb pain (plp) experienced by amputees but, so far as I can see, its focus is upon the efficacy of such as opioids as a 49 At [44] above. 50 See [24] above. means of relief rather than upon circumstances giving rise to illicit opioid taking by some means of self administration. [192] The Ketz paper is similarly aimed, albeit one examining a wider range of possible remedies for plp. [193] The Horgan and MacLachlan paper from Trinity College, Dublin, which reviewed then existing (in 2004) literature on the social and psychological challenges faced by people with an amputation. [194] The conclusions expressed may be summarised thus: Although depression and anxiety appear to be relatively high up to two years post-amputation they appear to decline thereafter to what is found in the general population; However, social discomfort and body image anxiety have been found among some people with amputations and these have been associated with a poorer adjustment in terms of greater activity restriction, depression, and anxiety; Factors associated with better adjustment to limb loss include increased time since amputation, higher levels of social support, higher levels of satisfaction with the prosthesis, higher levels of active coping, an optimistic personality disposition, lower levels of amputation, and lower levels of phantom limb and stump pain; Older age or male gender are associated with a better outcome than younger age or female gender. [195] But the authors then go on to sound some real cautions, such as that the use of different instrumentalities to measure depression are likely to yield varying levels of depressive symptomology and that research into the nature of the reaction to limb loss as a stress or grief response has been neglected. [196] They do not suggest that their observations are anything like any kind of definitive word on the topic. To the contrary, they suggest that due to the large number of factors that have been found to influence the process of adjustment, and the importance of understanding the meaning of these for the individuals concerned, they recommend both qualitative and quantitative research designs as a way forward. [197] As I see it (and assuming that 'drug dependency' is identifiable as a 'mental injury') the drug abuse outcome is once too many removed from the physical injury event (and in any event too confusingly multifactorial in its origins) to be recognisably as tracking back - so that it can be identified as resulting from or arising because of - the accidental injury. [198] As much as anything, I rely here on Dr Codyre's appraisal of the literature which would obviously have ranged far wider than the particular examples identified by Mr Schmidt. [199] In short I cannot find in the evidence sufficient to justify the conclusion (whether adopting the March or any other approach to causation) that the accidental physical injury was an effective cause of the drug dependency; that the latter resulted from that injury. [200] It seems to me to have been too remote a consequence - one outside the scope of the risk - as to justify the imposition of a liability for it on the Corporation. [201] Any such dependency (and I recognise that Dr van der Westhuizen also saw such) belongs, as I see it, with the other post-accident (but not accident attributable) baggage that I mentioned earlier. Hepatitis C Preliminary [202] On 18 July 2012 I issued the following, self-explanatory, minute to counsel: Counsel will now have my judgment in this case. One matter now arises in respect of it which is this: Counsel, no doubt through inadvertente, did not draw the court's attention to the difference in the statutory language as between s 26(1) (c) "because of" and 20(2)(g) "consequential on": on each ide, their submissions were, generally speaking, very much facts and medical opinion focussed. Section 20(2)(g) bears upon the question of hepatitis C. That the Court's attention is not drawn to a relevant statutory provision is one of the grounds upon which a judgment may be recalled. It seems to me that the judgment should be recalled so as to include due (as regards the hepatitis C issue) reference to 20(2)(g) and thus avoid risk of confusion for later readers. As, in the context of this case at least, I see no palpable difference between 'because of" and "consequential on" - in current context they would appear to be synonymous - inclusion of and due reference to s 20(2)(g) could not be expected to alter my view that cover is not available for hepatitis C: in other words, the outcome would not alter in any way. I invite counsel to consider the above. If either wishes to be heard I will convene an early telephone conference. If neither does, I will recall and properly complete the judgment as indicated. Counsels' decisions please as soon as possible and certainly no later than by this Friday 20 July @ 1 p.m. [203] Mr Schmidt replied: I agree with the Court's observations, acknowledge that it would not alter the outcome and am happy for the judgment to be amended. And Ms Becroft replied: ACC has no objection to the Court's proposal to recall and complete its judgment: counsel notes that the Court of Appeal's discussion of expressions such as "cause", "result" and "consequence" in Atkinson" (para [21]) may be of assistance. [204] In Atkinson the Court noted that expressions such as "cause, "result" and "consequence" may have different shades of meaning in some contexts but in others may be interchangeable. An example of the latter category is to be found in Brider Atkinson v Accident Rehabilitation and Compensation Corporation [2002] 1 NZLR 374. Brider & Hughes v Accident Rehabilitation and Compensation Corporation HC Wellington, AP 120 /98, judgment 3/12/98, Doogue & Durie JJ. [205] Having considered those cases I am reinforced in the view that, in the current context, there is 'no palpable difference between "because of" and "consequential on". Thus in my now following (and revised) disposition of the hepatitis C claim (for which purpose the 13 July judgment is recalled and now reissued) I proceed on that basis. Disposition [206] In order to deal with the hepatitis C claim (to which the van der Westhuizen appraisal also refers) I particularly return to the report of Dr Gane (as to which see [73] above). He explains that Mr Baker contracted hepatitis because of his drug injection habit and that its progression, in chronic form, had been accelerated by very heavy alcohol use. [207] But there is more to it, even, than that. He also explains that Mr Baker had genetic haemochromatosis". That, in the context of heavy alcohol use, had resulted in an iron overload in the liver which, despite unloading with regular venesection, had led to the liver disease continuing to progress. [208] There is nothing in Dr Gane's report (nor in Dr van der Westhuizen's evidence or - as is shortly to be noted - anywhere else) suggestive of any real and significant causal link between the personal injury by accident in 1986 and the hepatitis C. [209] Mr Schmidt had submitted that it was more probable than not that the hepatitis C was an unfortunate consequence of the amputation "and the complications arising afterwards". [210] Dr van der Westhuizen certainly recognised Mr Baker's extreme health difficulties at the time of his examination, this in terms that: 3 Defined by Black's Medical Dictionary 42" Ed as "A disease in which cirrhosis of the liver, enlargement of the spleen, pigmentation of the skin, and diabetes mellitus are associated with the abnormal and excessive deposit in the organs of the body of the iron-containing pigment, haemosiderin. It is caused by an increase in the amount of iron absorbed from the gastrointestinal tract." Brent is a 49 year old person suffering from end-stage liver failure, who does not qualify for a liver transplant. He also wrote of him as having dementia and he did speak of "post liver failure due to hepatitis C, due to intravenous drug use, due to the physical injury that is a motor bike accident in 1986". [211] But when I view his report in its completeness (and I also remind myself that Dr van der Westhuizen's speciality is psychiatry) I do not find any medical basis - even letting boldness be the Court's friend in the pursuit of the objective of seeing justice done - for the conclusion that there was a significant causal connection between the accidental injury and the development of the hepatitis C: too much from this, that and every other direction gets in the way of such a conclusion. [212] Nor do I find support for that conclusion anywhere else in the evidence. Rather (and even on the van der Westhuizen evidence) does it appear that the hepatitis C arose from an in the end inseparable confluence of reasons none of which is capable of identification as significant in relation to the fact of the physical injuries. [213] Dr Codyre saw the hepatitis as connected to the substance and alcohol abuse. But significantly, and on the last page of his report, he observed that the hepatitis C and related cirrhosis of the liver are: harder to causally link to the physical injury. Prescribed opiate dependence is common in chronic pain, but abuse of illicit opiates is much rarer. Likewise alcohol abuse is not uncommon in the face of chronic pain, out alcohol dependence rarer. There is less in the psychiatric literature to clearly support potential causal links to physical injury, as opposed to injury as a stress which precipitates conditions to which there was prior significant predisposition. [214] Here, in my consideration, Mr Baker's case suffers the same kinds of impediments as I found to bar any favourable to his estate conclusion concerning the drug dependency claim. [215] In the end, I cannot identify any proper statutory/factual scope of obligation pathway to a conclusion such as would hold the Corporation liable in respect of the hepatitis C. [216] Fundamentally, I cannot identify any persuasive evidential support for the proposition that it resulted from - in the synonymous in present context words of s 20(2)(g) was "consequent on" - the personal (physical) injury: at least not in terms to be found within the boundaries of the scope of the responsibilities which (in lieu of a defendant able to be pursued in conventional negligence terms) the Corporation bears under its statute. Result [217] The review (and thus Corporation) decisions are upheld save, and significantly, in respect of the depression suffered by Mr Baker. [218] That I find established as a mental injury within the terms of s 27 suffered by Mr Baker because of the physical injuries he suffered in the July 1986 accident. Thus the contrary review (and thus Corporation) decisions are quashed. [219] Ms Becroft recognised that should the estate be held entitled to claim for some or all of the entitlements identified by Mr Schmidt then the Corporation would be bound carefully and thoroughly to investigate the nature and extent of such remedies. [220] Given that sensible concession, a direction that it do so is probably unnecessary but mindful of s 161(2) I instruct the Corporation to proceed accordingly with a view to ensuring that the estate receives all lawful benefits shown to be justified. Note [221] When I raised with counsel the possible (now actual) recall of this judgment as first issued I took the opportunity to mention another issue, my minute on which read: I thank counsel for their helpful responses to my 18 July minute. Before I record the formal recall and reissue of the judgment in the terms indicated and now accepted, I raise one further statutory point which was not referred to in the course of argument. Counsels' arguments (focussed as they were simply on cover issues) did not draw attention to s 36 (2) - which has just now been drawn to my attention in another context - or, in that respect or otherwise, to the effect of Part 11 (containing transitional provisions) of the 2001 Act. As the original personal (physical) injuries in the present case were suffered in 1986 but the claim for consequential mental injury was only made in 2010, it now occurs to me that issues could arise in statutory rather than simply evidential terms as regards recognition/definition of the date of onset of the mental injury. Of course it may simply be - as indeed is my 'first blush' view - that (on account Part 11 being about entitlements) those are matters for consideration/investigation and any necessary adjudication as a consequence of my judgment (which - consistent with scope of the case as argued - was about cover rather than its consequences). But with recall being on the table at this point, I now - and simply out of an abundance of caution - solicit counsels' views. Thus I invite them immediately to confer and then to respond (jointly or severally) as soon as practicable, and in any event no later than 4 pm this Thursday, 26 July. [222] Counsel most helpfully responded on 29 July 2012 with this joint memorandum: MAY IT PLEASE THE COURT 1. The joint memorandum of counsel is filed in response to the Court's email of 23 July 2012 asking for comment on the date upon which the mental injury (depression) for which the appellant now has cover was suffered. 2. As His Honour has noted, the claim for cover for mental injury was lodged while the Accident Compensation Act 2001 was in force. 3. Part 11 of the Accident Compensation Act 2001 sets out the transitional provisions. Those provisions determine how the Act manages claims for cover lodged after the 2001 Act came into force but which relate to injuries that occurred under previous legislation. 4. Section 360 of the 2001 Act reads: 360 Claim for cover under former Acts not lodged until on or after 1 April 2002 (1) Subsection (2) applies to a claim for cover, if the claim- (a) is for personal injury suffered before 1 April 2002; and (b) is not lodged with the Corporation before 1 April 2002. (2) A claimant has cover under this Act only if- the claimant would have had cover under this Act, had the injury occurred on or after 1 April 2002; and (b) the claimant would have had cover under the Act that was in force at the time that the person suffered the injury. 5. With respect to His Honour's point that the original physical injuries were suffered in 1986, Mr Baker, to have cover for mental injury by way of depression, would need to establish that he could have cover both under the Accident Compensation Act 1982 and the Accident Compensation Act 2001. 6 . In this case, that will not present a difficulty because the Accident Compensation Act 1982 provided cover for both the "physical and mental consequences of any such injury or of the accident" under the definition of personal injury by accident set out in s2 of that Act. In fact, under the Accident Compensation Act 1982 it was possible to have cover for the mental consequences of an accident without there being a physical injury. 7 . Here, because the determination of the Court was that Mr Baker's physical injury was a material cause of his mental injury, cover under both Acts is appropriate. 8 That result helps establish the date of injury in that mental injuries which attract cover under the Accident Compensation Act 2001 are assigned a date of injury by operation of section 36 of the Accident Compensation Act 2001. 9. Section 36(2) of the 2001 Act states that the date on which a person suffers a mental injury (because of physical injuries) is the date on which the physical injuries were suffered. 10. The effect of section 36(2) on the present appeal means that Mr Baker will have cover for his depression from 15 July 1986, being the date upon which Mr Baker suffered the injuries to his lower left leg. 11. Counsel's view is that the answer set out above is likely to be correct and that decisions about entitlements will probably be determined on that basis. Hopefully, the view set out above is sufficient for the Court to finalise the judgment, but counsel are happy to provide further comment if requested. [223] I count the recording of my query and of counsels' very helpful response (as just set out) to be all that is required to complete this judgment in its revised form. [224] In so completing it, I note that, as thus informed, I find counsels' approach and conclusions highly persuasive but, since the issue was not part of the argument during the hearing, I do not formally rule on it. Costs [225] The estate must have reasonable recompense for costs. If counsel cannot agree these, they may revert to the Court. Roderick Joyce QC District Court Judge