MONK v ACCIDENT COMPENSATION CORPORATION HC WN CIV-2011-485-997

MONK v ACCIDENT COMPENSATION CORPORATION HC WN CIV-2011-485-997 18 November 2011IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-997UNDER s 162 of the Accident Compensation Act2011IN THE MATTER OF an appeal against a decision of the DistrictCourt at WellingtonBETWEEN STACEY ANN MONKAppellantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 15 August 2011Counsel: Mr J M Miller and Ms E M Wilson for the AppellantMr C J Hlavac for the RespondentJudgment: 18 November 2011JUDGMENT OF MALLON JIntroduction[1] Ms Monk (the appellant) seeks accident compensation cover for a mental injury following medical treatment she received. The issue on this appeal is whether the mental injury must have been suffered because of physical injuries which themselves would be covered, or whether it is sufficient that they were suffered because of a physical injury regardless of whether that physical injury would be covered. The issue arises because the physical injury from which the mental injury is said to have resulted, namely the insertion of a needle into Ms Monk‟s spine, is anecessary part of the medical treatment. As such it is not a physical injury of a kind that is covered.Background[2] Ms Monk was taken to the hospital in an ambulance in late February 2008 suffering from a sudden and violent headache. She underwent a CT scan. It was then decided that she should have a lumbar procedure, which involved inserting a large needle into her spine. During the procedure she said that she was experiencing electric shock down her legs. The procedure was halted and a second unsuccessful attempt was made to carry it out.[3] The next day the lumbar procedure was able to be carried out. Later that day she had difficulty walking and continued to suffer headaches. For some months after this Ms Monk continued to experience a lack of full control of her legs and required the use of a crutch to aid in walking. She applied for accident compensation cover for the loss of use of her legs.[4] A neurologist engaged by the Accident Compensation Corporation (the respondent) concluded that there was no evidence that Ms Monk had suffered a physical injury arising out of the lumbar procedure. The neurologist agreed withother medical opinions that Ms Monk was suffering a "conversion disorder" (iephysical symptoms which have no physiological basis, but which may have arisen from the psychological trauma of the treatment).[5] The Corporation declined cover and this decision was upheld by the reviewer.The District Court dismissed Ms Monk‟s appeal on the basis that to be covered the mental injury needed to result from a physical injury (s 26(1)(c) of the 2001 Act). The District Court considered that the breaking of the skin by the spinal needle did not amount to a physical injury (from which the mental injury could be said to have resulted) because s 32(1)(c) of the 2001 Act requires that the physical injury not be a necessary part, or ordinary consequence, of the treatment. As the conversion disorder had no physiological basis there was no physical injury for the purposes of s 26(1)(c).[6] Leave to appeal the District Court‟s decision was granted. As set out in theNotice of Appeal to this Court the question of law for consideration is:whether a mental injury arising out of proper medical treatment, so that the physical injury aspect of that treatment does not constitute a treatment injury, is nevertheless a treatment injury arising out of a personal injury.[7] The District Court Judge considered that this issue was capable of serious argument and warranted consideration by the High Court. The Judge noted that if the question were answered in the affirmative then he expected it would need to go back to Review, or perhaps the District Court, for a decision on whether there is the appropriate nexus between the lumbar puncture and Ms Monk‟s mental suffering,taking into account Ms Monk‟s underlying health condition at the time of the lumbar procedures.The statutory provisions[8] Section 20 of the 2001 Act sets out the requirements for cover for personal injury as follows:20. Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts or work-related mental injury)(1) A person has cover for a personal injury if—(a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and(b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and(c) the personal injury is described in any of the paragraphs in subsection (2)....[9] There is no issue about the first requirement (s 20(1)(a)).[10] As to the second requirement (s 20(1)(b)), s 26(1) provides:(1) Personal injury means—(a) the death of a person; or(b) physical injuries suffered by a person, including, for example, a strain or a sprain; or(c) mental injury suffered by a person because of physical injuries suffered by the person; or...(e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.[11] As to the third requirement (s 20(1)(c)), s 20(2) provides:(2) Subsection (1)(c) applies to—(a) personal injury caused by an accident to the person:(b) personal injury that is treatment injury suffered by the person....[12] Treatment injury, as referred to in s 20(2)(b), is defined in s 32 as meaning:32(1) Treatment injury means personal injury that is—(a) suffered by a person—(i) seeking treatment from 1 or more registered health professionals; or(ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or(iii) referred to in subsection (7); and(b) caused by treatment; and(c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—(i) the person's underlying health condition at the time of the treatment; and(ii) the clinical knowledge at the time of the treatment.(2) Treatment injury does not include the following kinds of personal injury:(a) personal injury that is wholly or substantially caused by a person's underlying health condition:(b) personal injury that is solely attributable to a resource allocation decision:(c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment.(3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury....Submissions[13] Ms Monk submits that she meets the second requirement for cover (s 20(1)(b)) because she has suffered a personal injury of the kind described in s 26(1)(c). She submits that her mental injury has been suffered because of physical injuries, namely the breaking of the skin and underlying tissue from the insertion of the needle into her spine. She submits that she meets the third requirement for cover (s 20(1)(c)) because this personal injury (namely the mental injury suffered because of the physical injury) is a treatment injury (s 20(2)(b)). She submits that this personal injury (namely the mental injury suffered because of the physical injury) is not excluded by s 32(1)(c) because that injury is not a necessary part of, or ordinary consequence, of the treatment.[14] The Corporation submits that the legislative history shows that the scope of cover for mental injury is intended to be strict. It refers to the amendment in the 1992 Act which reversed the Court of Appeal‟s decision in Accident Compensation Corporation v E.1 It says that the 2001 Act is not materially different from the 1992 Act in this respect. It says that, consistent with an intention to define the scope of cover narrowly, the 2001 Act defines two particular instances in which mental injury on its own is covered by the Act (referring here to s 21(1) and s 21B of the 2001 Act).[15] The Corporation submits that the term "physical injuries" in s 26(1)(b) isconcerned with physical injuries which are covered. It submits that "logically and consistently the term „physical injuries‟ as it appears in s 26(1)(c) must also only mean „physical injuries‟ which are covered." It submits that "this means that mental1 Accident Compensation Corporation v E [1992] 2 NZLR 426(CA). That this was the intendedeffect of the new provision in the 1992 Act is referred to in Harrild v Director of Proceedings[2003] 3 NZLR 289 (CA) at [71].injury will only be a „personal injury‟ (and therefore covered) where that mentalinjury is caused by a „physical injury‟ which is also a „personal injury‟ (and thereforecovered)." It submits that this interpretation is consistent with the legislative intent to define the scope of cover for mental injury narrowly.My assessment[16] The difficulty with the Corporation‟s submission is that s 20 defines therequirements for cover whereas s 26 defines what constitutes a "personal injury". The term "personal injury" is used in s 20(2) and in s 32 and, on a plain reading of those sections, this must refer back to the personal injury as defined in s 26. The sections therefore work as follows.[17] If there are physical injuries then that is one kind of "personal injury" (as defined in s 26) that is covered (under s 20) unless some other exclusion applies. By way of example, if a person has surgery they may suffer physical injuries in that bodily harm or damage2 may occur (eg if the surgery involves cutting the skin and underlying tissue). Those physical injuries would qualify as a "personal injury"under s 26(1)(b) and therefore would meet the second requirement for cover (s 20(1)(b)). However they would not have cover because they would not meet the third requirement (s 20(1)(c)). That is because the physical injuries from the surgeryare not an "accident" (s 20(2)(a)), and they are not "treatment injury" (s 20(2)(b)),because the physical injuries are a necessary part of the treatment (s 32((1)(c)).[18] Another kind of "personal injury" (as defined in s 26) that meets the secondrequirement for cover (s 20(1)(b)) is a "mental injury suffered by a person because ofphysical injuries suffered by the person" (s 26(1)(c)). If a person suffers a mental injury because of surgery (which involved bodily harm or damage) then this would2 Teen v Accident Rehabilitation and Compensation Insurance Corporation HC Wellington CIV-2003-485-1478, 11 November 2003 which discussed the meaning of "physical injuries" asbodily harm or damage (at [13]). In Patient A v Health Board X HC Blenheim CIV-2003-406-14,15 March 2005 the High Court also considered that "physical injuries" could also include "interference with bodily integrity" (at [54]). That view was also taken by the High Court inAccident Compensation Corporation v D [2007] NZAR 679 (HC). The Court of Appeal, on an appeal from the decision in Accident Compensation Corporation v D ([2008] NZCA 576), refers tothe need for "harm or damage" (at [55]).meet the second requirement for cover. That "personal injury" would also need tomeet the third requirement for cover (s 20(1)(c)). It would meet that requirement as"personal injury that is treatment injury" (s 20(2)(b)) providing it met the definition in s 32. That definition requires there to be a "personal injury" (in this example, themental injury suffered because of the surgery injuries) suffered by a person seeking treatment (the surgery), caused by the treatment (the surgery) and which is not a necessary part of or an ordinary consequence of the treatment (mental injury suffered because of surgery injuries is unlikely to be a necessary or ordinary consequence of the treatment).[19] I therefore consider that the plain words of the sections do not support the submission advanced by the Corporation. I accept that the legislature intended to limit cover for mental injuries after the decision in Accident Compensation Corporation v E so that "mental injury" alone is not covered unless it meets one of the specific exceptions to this. Outside the specific exceptions, the scope of the cover is limited by:(a) requiring that there be "physical injuries" which cause the mentalinjury; and(b) the mental injury caused by physical injuries must either be caused by an accident (which in the case of physical injuries from treatment will not usually be the case unless the mental injury arises from some mistake in the treatment) or be a treatment injury (as defined).[20] There are a number of requirements that must be met in order for the personal injury to meet the treatment injury definition. Relevantly here, the personal injurymust be "caused by the treatment" (so Ms Monk will have to establish that herconversion disorder has been caused by the lumbar procedure) and it must not be"wholly or substantially caused by a person‟s underlying health condition" (whichMs Monk will also have to establish). Both of these are matters the Judge granting leave considered would have to be referred back to the Reviewer or the District Court.Result[21] I accordingly answer "yes" to the question on which leave was granted. A mental injury suffered because of physical injuries can be covered as a treatment injury even if the physical injuries were a necessary or ordinary consequence of the treatment. The appeal is accordingly allowed. For the purposes of the appeal it was accepted that the lumbar puncture (involving a large needle going into the spine) amounted to "physical injuries". That issue, together with whether the issues referred to in [20] above and any other issues, that were not determined because of the view that was taken about the meaning of s 26(1)(c) an s 20(2)(b), are referred back to the Reviewer (or the District Court if both parties consider that is more appropriate) for consideration.Mallon J