D v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT NELSON Decision No. 016/2004 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN WILLIAM FRANCIS DORRINGTON (AI 622/02) Appellant AND - ACCIDENT COMPENSATION CORPORATION Respondent HEARD at Nelson on 5 December 2003 APPEARANCES Miss S Kissling, Counsel for Appellant. Mr J Sumner, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 15 March 2002 whereby it declined the appellant's claim for cover for an injury to his testicles said to have arisen in an assault by his father in 1977. [2] The respondent's decision encompassed the appellant's claim for cover on its merits and stated that there was insufficient evidence on which it could make a decision. Secondly, it rejected the claim pursuant to Section 53 of the Act on the grounds of the claim's lateness prejudicing the respondent's ability to make a decision on the claim. [3] The facts relevant to the determination of this issue are not in dispute and may be stated as follows: 622.02 (pg) 2 • On 18 January 2002 the appellant, then aged 37 years, lodged an application for cover with the respondent for what was described as "ongoing pain left testis and emotional trauma ongoing." • The date of the incident was given as 1977 and the details given were that the appellant's father beat him on his genitals with a belt buckle on a belt. • At the time of this alleged incident the appellant was 12 years of age. • There was no medical intervention at the time of the incident nor intervention from any other authorities. • In August 1985, Dr Graeme Bishop issued a certificate under the Mental Health Act 1969 for the appellant's committal to a mental institution and part of the reasons given for the appellant's then condition was stated as being "long history of problems including violence from father." • The appellant has had emotional and psychiatric problems dating back to his teenage years and he has had at least 11 admissions to hospital for the various disorders which have been diagnosed including paranoid personality disorder, schizophrenia and drug induced psychosis. • There is a file note from the appellant's GP of the time, Dr Russell, dated 26 August 1998 which states − "Benign testicle pain - heavily overlayed with memories of beating by father." • In the GP's note that accompanied the appellant's claim for cover, Dr Kingston stated − "When aged 12 he was abused by his father by physical hitting on his penis/testicles with a belt buckle. He still has pain in L testis especially in the epididyium. The pain is intermittent." • The appellant's claim for cover was declined by the respondent on the basis that insufficient medical information at the time of injury to confirm the fact of the injury had been provided. • The appellant sought a review of the decision and for the purposes of that review a report was presented from Dr Salter, Consultant Psychiatrist. The effect of Dr Salter's report was to confirm that the appellant suffered from a recognisable psychiatric abnormality and this had a connection with abusive experience in his early past. • At the hearing the appellant himself gave evidence of the fact of the beating by his father with the belt and buckle and how his genitals were bruised and swollen. 622.02 (pg) 3 • In further evidence given at the Review hearing the appellant stated that there was only one other occasion that he was assaulted by his father namely, when his father whacked a knife on his finger at the tea table and drew blood. • There is also reference to the fact that his mother may well have been involved in abusive behaviour but the appellant did not wish to speak of it. • In his decision dated 6 November 2002 the Reviewer noted that there was only the appellant's evidence as to the fact of suffering a personal injury and he found that the lapse of time before bringing the matter forward was prejudicial to the respondent. He therefore confirmed the respondent's decision to decline cover. [4] It is contended by Counsel for the Appellant that the particular assault incident caused the appellant substantial emotional trauma and that the appellant is still suffering from the consequences of that today. Counsel further submitted that the note by Dr Russell in August 1998 clearly indicates that an injury had been occasioned to the appellant in or about 1977. [5] Counsel submitted that the extended definition of "personal injury" in the 1998 Act included "mental injury suffered because of the physical injuries suffered" and thereby entitled the appellant to cover for the mental injuries which had been identified by Dr Salter. [6] Mr Sumner, Counsel for the Respondent, submitted that the appellant was required to establish causation between any injury and the mental condition which he now displayed. Counsel submitted that there was no mention of any particular incident as causing mental injury. [7] Counsel further submitted that the lapse of time before bringing the claim was prejudicial as the respondent had no way of investigating or checking the circumstances of the alleged incident. DECISION [8] This appeal is to be considered under the provisions of the Accident Insurance Act 1998 by virtue of Section 423. That Act allows for cover for personal injury suffered being any of the kind of injuries described in Section 29 of the Act. 622.02 (pg) 4 [9] Section 29 describes personal injury as including − "Mental injury suffered by an insurer because of physical injuries suffered by the insured." [10] In the case of this appellant there was no evidence that he is still suffering from any physical injury associated with the assault with the belt and buckle which occurred back in 1977. What is contended is that that assault has had ongoing mental consequences and is causative of the appellant's identified psychiatric condition. [11] The first medical records to which the Court can look is the note by Dr Graeme Bishop made at the time the appellant, then aged 20, was committed under the Mental Health Act in 1986. The reference is that part of the appellant's problems was the violence from his father. However, other influences noted were drug addiction and unable to tolerate authority. [12] The next reference is that of Dr Russell in his notes of 1998 which were entered because the appellant consulted him about a sore left testicle which he had had for two months and which he stated was from a beating by his father 20 years ago. Dr Russell's examination noted "benign testicle pain heavily overlayed with memories of the beating by his father." [13] The appellant gave evidence at the Review Hearing and it seems to be the case that other than one minor incident which may to have been a chastisement at the dinner table, this beating with the belt is the only occasion of violence by the appellant's father upon him. I note from the transcript of the evidence when the question was put directly to the appellant, whether this was the only time he was assaulted by his father or were there other times, and his answer was − "Only that time. And another time he whacked a knife on my finger at the tea table and drew blood." The question was actually put to the appellant again as to whether there were other times that his father was violent to him and his reply "No, that's probably about it." [14] When that evidence is contrasted with a notation made by Dr Butt, Medical Officer at Ngawhatu Psychiatric Hospital it does not correlate. In the report Dr Butt states − 622.02 (pg) 5 "William declares that he had a terrible relationship with his parents - violence from his father and unwanted by his mother. [15] In the report from Dr Mark Salter, Consultant Psychiatrist, to the GP who referred the GP to him, Dr Salter states − "In his background he appears to have been the recipient of an abusive upbringing and persistently displayed extreme anti-social, rebellious behaviour from an earlier age. It drastically disrupted his schooling and probable psychological development." Dr Salter ended his report stating − "I have assured him that I would be happy to write to his lawyer to confirm the fact that he has suffered a recognisable psychiatric abnormality and that this very clearly has a connection to his abusive experiences in his early past. [16] From the foregoing I find that on the balance of probabilities the incident of the beating with the belt and buckle did occur. The appellant has given sworn evidence of that fact, and it is the case that although it cannot be regarded as corroboration, I find that the fact of the notation of the incident in the medical notes of Dr Russell in 1998 do nevertheless point to the fact of this incident. At the time when the appellant would have given Dr Russell this advice he was doing so for the purpose of receiving treatment and certainly not to claim any benefit or advantage at that time. I find that the circumstances in which the appellant gave details to his doctor make it more probable than not that his account was the truth and that the incident did occur. [17] Having found that the beating did occur however, I find that that particular injury, though no doubt painful and socially embarrassing at the time, as the appellant deposed in his evidence, was an injury of transient nature and is not a physical injury that still pertains today and for which the appellant would be entitled to cover. [18] I find that in terms of Section 29 of the Act the appellant is not suffering from a physical injury and therefore the respondent was correct to decline cover for that aspect of the appellant's claim. Whilst the appellant was suffering from benign pain, that of itself is not evidence of injury and the evidence does not enable a finding to be made in the appellant's favour in that regard. [19] Turning to the claim for cover for mental injury suffered because of the physical injuries, in terms of Section 29(1)(c) of the Act, I find that the statutory provision 622.02 (pg) 6 requires that there be a causative link between the physical injury and the mental injury and that link is identified by the words because of. [20] As I have noted, the appellant's evidence would indicate only one item of what would be described as 'violence' and I find that there is simply no specialist evidence that would indicate that that particular incident of the beating with the belt was something which caused this appellant to suffer from the various mental problems which he had at the time when cover was sought. [21] I find that the statements of physical abuse in childhood are either an exaggeration or do not pertain to the appellant's father. There is a suggestion that the appellant's mother may have been involved in other forms of abuse than outright physical abuse. Such matters however cannot be considered when determining whether there is a causative link for the purposes of cover under the Act. [22] I find that the general statement made by Dr Salter of the appellant's psychiatric abnormality having a connection to his abusive experiences is far too vague and wide for it to amount to establishing a causative connection between the one incident and the later series of psychiatric problems which have been documented. [23] Having found as I have that the appellant cannot establish a sufficient causative connection to be entitled to cover, I do not propose to consider the more legal question of whether or not the respondent has been sufficiently prejudiced to disentitle the appellant on that ground. I find on the merits that the appellant cannot establish an entitlement and that effectively concludes the matter. [24] The effect of my decision is that the respondent was correct to decline cover to the appellant for the claimed mental injury alleged to have been suffered by him because of a physical injury suffered in 1977. This appeal is dismissed. DATED at AUCKLAND this 16th day of February 2004 M J Beattie District Court Judge 622.02 (pg)