HORNBY V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2008 485 763

HORNBY V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2008 485 763 10 December 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2008 485 763UNDER the Injury Prevention, Rehabilitation, and Compensation Act 2001 BETWEEN SHARON ROBYN HORNBY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 December 2008 Counsel: A C Beck for appellant C J Hlavac for respondent Judgment: 10 December 2008JUDGMENT OF DOBSON J[1] This was an application for leave to appeal a decision I delivered on 10 September 2008, relating to the interpretation and application of s 26(1)(c) of the Injury Prevention, Rehabilitation, and Compensation Act 2001 ("the Act"), and in particular the nature of the connection required between a previous physical injury, and a mental injury suffered thereafter "because of" the physical injuries. The test for granting leave in the present circumstances is well-settled. The applicant must raise a question of law capable of bona fide and serious argument. That question must involve a public or private interest of sufficient importance to outweigh the cost and delay of a further appeal – see for example Knight v Accident Compensation Corporation HC CHCH CIV-2005-485-1582 6 April 2006 Randerson J. [2] In this case, the applicant for leave ("the appellant") had for some years suffered from a recognised mental disorder for which she had from time to time beentreated. She broke her arm in March 2000 whilst getting out of a car. Thereafter, she was further diagnosed with the same mental disorder she had been treated for prior to breaking her arm. She sought cover under the Act for mental injury on the basis that it was suffered "because of physical injuries" suffered by her. In April 2004 the respondent declined her application for cover on the basis that the mental injury resulted from an exacerbation of a pre-existing anxiety and depressive condition. An application for review of that decision was dismissed in 2006, as was a subsequent appeal to the District Court. Accordingly, my own judgment upholding the District Court decision that cover was not available was the fourth consistent decision on the point. [3] Mr Beck now argues that the scope of cover for mental injury that flows from a physical injury is a matter of general importance, relative to the administration of the compensation schemes under the Act. He submitted that the nature of the relationship required when the link is expressed as "because of" has not been considered by the Court of Appeal, and it is therefore advanced as a question of law warranting consideration on further appeal. [4] For the respondent ("the Corporation"), Mr Hlavac accepted that there is a question of law raised by the proposed further appeal, but he denied that it was one which raised a seriously arguable point. He argued that the facts here established that there was no arguable prospect of a relevant connection between the pre-existing mental disorder and the circumstances of the physical injury. Mr Hlavac submitted that this case is to be distinguished from those where medical analysis reveals a combination of causes of a mental injury, when the mental injury had not been suffered before the physical injury. The factual findings which are not open to further argument made it clear that the form of mental disorder suffered by the appellant was a form of depression that was episodic, and therefore prone to recur. Any one of a number of triggers could make the symptoms of the disorder recur. [5] Mr Beck accepted that he would have to argue the questions of law he proposed in the context that the appellant's reaction to the physical injury, by way of recurrence of her "mental injury", was a consequence that the vast majority of persons suffering a broken arm would not be vulnerable to. He also accepted that arecurrence of the mental disorder could equally have been triggered by any number of physical or mental causes of stress. The propositions would therefore depend on the breaking of the arm being characterised as one of a number of contributing causes to the mental injury. [6] Mr Beck criticised the analysis in my judgment on the nature of the link necessary between a physical injury and subsequent mental injury. My judgment had adopted the analysis from one of the Court of Appeal judgments in Harrild v Director of Proceedings [2003] 3 NZLR 289, where the Chief Justice substituted the words "results from" (physical injury) as the appropriate phrase reflecting the connection between later mental injury where it was suffered "because of" physical injuries. Mr Beck criticises that formulation as not reflecting a considered and thoroughly reasoned approach by the Court of Appeal, with the Chief Justice's choice of those words not being endorsed by the other members of that Court. He was also inclined to criticise that formulation as not adding any clarity to the rational search for the relevant extent of connection between a physical injury and subsequent mental injury. [7] Mr Beck was also critical of the characterisation of the pre-existing mental injury as being "asymptomatic", and then at times becoming "symptomatic", as being labels encouraged by the Corporation that do not assist in a rational analysis of relevant causes of the mental injury in question. [8] Mr Beck seeks a further opportunity to put to the Court of Appeal the rationale he takes from that Court's reasoning in Accident Compensation Corporation v Ambros [2008] 1 NZLR 340, which he characterises as accepting common law notions of the test for causation on a "but for" basis, subject to relaxation of that requirement in favour of claimants in certain appropriate circumstances. [9] However, I do not take those points from the Court of Appeal decision inAmbros. After a thorough analysis of common law developments on causation in personal injury claims, the Court essentially rejected the appropriateness of those approaches when dealing with the scope of cover under the Act. The relevantreasoning focuses on the relative directness of the causative link required in the context of now repealed provisions affording cover for medical misadventure. [10] The appellant would be asking the Court of Appeal to entertain a further appeal on whether one among a number of causes of mental injury is sufficient to make out cover where the link is required to be "because of" physical injuries. I thus accept the Corporation's concern that such an issue of law ought to be tested in a factual context where that indeed is the case. 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. [12] For these reasons, I am not persuaded that the questions of law sought to be argued on a further appeal would be capable of bona fide and serious argument in the context of the particular appellant's medical conditions. [13] Accordingly, the application for leave is declined. [14] I was advised that the appellant is legally aided. There will be no order as to costs.Dobson JSolicitors: Peter Sara, Dunedin for appellant Young Hunter, Christchurch for respondent