HORNBY V ACCIDENT COMPENSATION CORPORATION CA CA781/2008

HORNBY V ACCIDENT COMPENSATION CORPORATION CA CA781/2008 26 February 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA781/2008 [2009] NZCA 33BETWEEN SHARON ROBYN HORNBY Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 February 2009 Court: William Young P, Hammond and Robertson JJ Counsel: A C Beck for Applicant C J Hlavac for Respondent Judgment: 26 February 2009 at 4 pmJUDGMENT OF THE COURT A The application for special leave to appeal to this Court is granted. B The questions for determination on the appeal are: (a) Did the High Court adopt the wrong test to determine whether mental injuries are suffered "because of physical injuries" pursuant to s 26 of the Injury Prevention, Rehabilitation and Compensation Act 2001? (b) If so, on the correct test is the appellant entitled to cover? C Costs are reserved.REASONS OF THE COURT(Given by Hammond J) [1] This is an application, pursuant to s 163(2) of the Injury Prevention, Rehabilitation and Compensation Act 2001, for special leave to appeal to this Court from a judgment of Dobson J given on 10 September 2008: Hornby v Accident Compensation Corporation CIV-2008-485-763. [2] Ms Hornby applied to the High Court for leave to appeal to this Court on certain questions of law, but leave was declined by Dobson J on 10 December 2008. [3] The appeal raises the question as to the proper test to be applied under s 26 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 to determine whether mental injuries are suffered "because of physical injuries" suffered by a person in an accident. [4] There are, analytically, three possible situations. First, there might be mental injury arising out of an "accident" and resultant physical injuries. This relates to what could be termed "accident trauma". Secondly, a pre-existing mental condition may be aggravated somehow, solely because of the physical injury. Thirdly, the physical injuries may have been a contributing cause – though not the only contributing factor to – the resurgence of a prior mental affliction. [5] Counsel accept that categories one and two come within s 26(1)(c) of the Injury Prevention, Rehabilitation, and Compensation Act 2001. [6] The third fact pattern – which is that presently before the Court – is more problematic. The answer given by a District Court Judge on an appeal to that Court, and then subsequently by Dobson J in the High Court, is that this third fact pattern is not within the statutory provision. [7] On any view of the matter, this is a question of law. The issue has not previously been before this Court for consideration. Further, it is a question of lawof considerable practical importance, with significant downstream consequences for the operation of the accident compensation legislation. [8] Accordingly, we consider this is an appropriate case for special leave to be granted. There is a procedural complication in that appeals to this Court are by way of case stated (see s 163(1)). This Court cannot itself directly undertake a case stated from the High Court: it has to come from the court below. It was likely for this reason that Mr Beck submitted that this Court should, in the event that the application is successful, direct that a case be stated putting the following questions of law to this Court for determination: (a) What is the correct test to determine whether mental injuries are suffered "because of physical injuries" pursuant to s 26 of the Injury Prevention, Rehabilitation, and Compensation Act 2001? (b) Is it sufficient for the purposes of cover that the physical injuries suffered by a person are one of the causes of the mental injuries suffered? [9] It would be very awkward, and give rise to further expense if this matter has to be remitted to the High Court. We consider that s 163(2) and s 163(3) are wide enough to enable this Court to settle the appropriate questions. [10] Accordingly, we allow the application for special leave, on the following questions. We think these should focus on whether Ms Hornby was entitled to cover, that is: (a) Did the High Court adopt the wrong test to determine whether mental injuries are suffered "because of physical injuries" pursuant to s 26 of the Injury Prevention, Rehabilitation, and Compensation Act 2001? (b) If so, is the appellant entitled to cover on the correct test?[11] Costs are reserved. As we apprehend it, Ms Hornby has applied for legal aid but a determination on that issue has not yet been made.Solicitors: Peter Sara, Dunedin for Applicant