Hornby v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 37 /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an application for Leave to Appeal to the High Court pursuant to Section 162 of the act BETWEEN SHARON ROBYN HORNBY (Al 206/06) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant seeks leave to appeal the decision of His Honour Judge J Cadenhead, delivered on the 26" October 2007 under Decision No.214/07, to the High Court. [2] In furtherance of that application the Court has received written submissions from Mr A C Beck, Counsel for the Appellant, in support, and from Mr C J Hlavac, Counsel for the Respondent, in opposition. [3] The issue for determination by His Honour was whether the applicant was entitled to cover for a mental injury in terms of Section 26(1) (c) of the 2001 Act, being a mental injury suffered by the applicant because of physical injuries suffered by her. [4] The applicant had cover for a personal injury, namely a fractured right arm suffered by her in a fall in March 2000, and it was contended that the applicant's 2 subsequent mental condition, generally described as anxiety and depression, was attributable to that physical injury. [5] It was established by the medical evidence that the applicant had suffered from depression and emotional upset for some time prior to suffering the March 2000 injury. (6] For the purposes of the appeal the Learned Judge received a significant amount of medical evidence in the form of reports from various specialists and including the appellant's GP. The principal medical evidence being psychiatric and provided in support of the applicant's claim by Dr Wisely, a psychiatrist with the North Community Mental Health Service, and for the respondent from Dr David Stoner, Consultant Psychiatrist. [7] In the course of considering the law, His Honour noted the current statutory provision and compared it with the wording of the earlier Accident Compensation statutes and at para 54 stated: "In all three statutes the appellant has the burden of proof on a balance of probabilities of showing that on the facts of the case, there was a causal relationship between the physical injury suffered with the mental injury now alleged as its outcome. There has to be a direct causal link between a physical injury and the mental condition alleged. An indirect link is not sufficient." [8] Further on in his decision at para 70 the Learned Judge stated: '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. The case of Woodd clearly postulated direct causation issues. This case is mo kin to Robinson and Gable, which were cases of entangled causation issues. The mental condition was there and the most that can be said was the accident may have aggravated the pre-existing condition." [9] His Honour then went on to state at para 71: 'In my view the appellant suffered from a major depressive disorder that pre-dated the accident. There have been a number of factors other than the physical injury itself which have significantly contributed to the onset and continuation of the appellant's depression." [10] It is largely from those passages of the Learned Judge's decision that Mr Beck, for the applicant, contends that the Learned Judge erred in law by holding that indirect causation was insufficient to satisfy the requirements of the Act. [11] It is also the case that Mr Beck contends that the Learned Judge rejected the evidence of Dr Wisely without a rational basis for doing so and further, reached a conclusion that was in conflict with the overall evidence. [12] These latter two contentions, I find, have no basis for the predicating of an error of law, and the Learned Judge simply found as a matter of fact that the applicant had a pre-existing depressive disorder which continued on after the suffering of the physical injury which was contended as being the cause of her depression. [13] It is the case that His Honour delayed the delivery of a Judgment in this appeal as he had been advised by Counsel for the Applicant that the High Court had granted leave to appeal in an appeal of Seddon, which was said to be largely on point. [14] Whilst His Honour Justice Mackenzie granted leave in that case, the appeal did not proceed and was withdrawn and it was following its withdrawal that His Honour Judge Cadenhead delivered his decision in the present case. [15] In his submissions in the present application, Mr Hlavac for the respondent submits that the facts in Seddon are quite different to those in the present appeal and involved the continuation from a physical injury into the development of a chronic pain syndrome. It was from the chronic pain syndrome that Seddon was said to have suffered a major depressive episode, and which was the mental injury sought to be claimed. [16] The District Court decision determined that because the physical injury did not directly cause the chronic pain syndrome there could be no direct causative link between the physical injury and the mental injury. [17] It seems to me that the issue in Seddon was not too different from that which confronted His Honour in this present appeal and where the issue of indirect causation did arise, and does arise in the present case, as postulated by Counsel for the Applicant. [18] In the circumstances, I consider that there is a question of law that should be considered by the High Court on how Section 26(1)(c) is to be considered where, as His Honour Judge Cadenhead found in the present case, the cause was indirect and included notions such as brooding and worry. 4 [19] Whilst Mr Hlavac is quite correct that His Honour found on the facts that there was no direct causative link, it is the case that he had ruled as a matter of law that indirect causation could not be considered, and it is that issue which is at the heart of the question of law postulated by Mr Beck. [20] Accordingly then, leave is granted to the applicant to appeal to the High Court on the question of law which, in terms of Section 26(1)(c), is whether a finding of indirect causation is sufficient to satisfy the requirements for cover for the claimed mental injury. DATED at AUCKLAND this 18 day of February 2008 M J Beattie District Court Judge