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Accident Compensation Cases

Clapp v Accident Compensation Corporation (DC, 10/07/14)

Judgment Text

Decision on Application for Leave to Appeal to the High Court on A Question of Law 
Leave to appeal the decision of Judge R Joyce dated 24 September 2012 is granted. 
The issue for determination on appeal is the degree of causation and/or connection required between the mental injury suffered by the person, and the physical injuries the subject of the claim, to satisfy the wording of s 26(1)(c)“because of physical injury suffered”
Judge J A Smith
The District Court concluded an appeal from a review decision of the Corporation that: 
“Mr Clapp's mental injury, that which he has undoubtedly suffered, is not one that he has suffered because of the physical injuries. ”
The date of that decision is 24 September 2012. Within the period provided for in s 162 of the Act (of 21 days) Mr Miller, for Mr Clapp, sought leave to appeal the decision. Unfortunately, notwithstanding the consequent exchange of submissions around March 2013, the matter has languished since that time and has now been forwarded to me for consideration. 
The full facts of the case are set out in the District Court decision and I do not intend to repeat them here. For current purposes, I take the substantive facts giving grounds for the appeal are: 
That Mr Clapp suffered a strain injury to his back in 2004; 
By October 2006 there was a recognition that there may be other matters at play: 
“with progression of the state of limitation, more than just chronic pain syndrome, complaint of weakness of the whole body, crutch walking/ dependency, non-anatomic numbness, Dr Xiong wondered if there was not a psychological overlay and that the clinical manifestations projected represented a form of chronic conversion disorder; ”
In a subsequent consultant psychiatrist report by Dr Gordon in December 2009, it was confirmed that the situation appeared to have developed subsequent to his injury and, in comment, noted: 
“ … it is difficult to understand how a man who was able to overcome previous injuries with determination and perseverence on this occasion seems to have succumbed. There is obviously a considerable amount of frustration in him, both of his own state and at what he sees as the findings/failings of other people to rectify his condition. Undoubtedly anger fuels much of his neurotic illness and enhances the quality and extension of his pain systems to large parts of his body, which is completely outside the realm of any neurological pain basis; ”
Dr Gordon identified chronic conversion disorder and concludes: 
“ … it is certainly hard to believe that the symptom pattern is a direct result of physical injury or whether in fact, and more likely, that other indirect factors may well have operated. ”
It is clear that an appeal to the High Court cannot be allowed on the basis of any questions of fact, and the question is whether the case raises any issue of law requiring determination. Essentially the question of law that is posed is where there is a mental injury suffered by a person, subsequent to physical injuries, what degree of causation or connection is required by the use of the words “because of” in s 26(1)(c). 
The starting point quoted by the District Court in its decision is Price Waterhouse v Khan.1
| X |Footnote: 1
[2003] 3 NZLR 39 (CA) at [28] 
Only part of the paragraph was cited by the District Court, but I cite the quotation in full: 
There is a material, indeed a crucial difference between causing a loss and providing the opportunity for its occurrence. The line between these concepts can often be difficult to draw but the distinction is vital. The point was addressed in the judgments delivered in this Court in Sew Hoy & Sons Ltd (In Receivership and in Liquidation) v Coopers & Lybrand [1996 1 NZLR 392. Plaintiffs in this field must show that the defendant's act or omission constituted a material and substantial cause of their loss. It is not enough that such act or omission simply provided the opportunity for the occurrence of the loss. The concept of materiality denotes that the act or omission must have had a real influence on the occurrence of the loss. The concept of substantiality denotes that the act or omission must have made a more than de minimis or trivial contribution to the occurrence of the loss. Looking at the question in this dual way is both a reminder of the difference between opportunity and cause, and a touchstone for distinguishing between them. In some instances the words used have been material or (as opposed to and) substantial. It is preferable, for the reasons just mentioned, to focus on both concepts for they are each relevant to causation issues. No form of words will ultimately provide an automatic answer to what is essentially a question of commonsense judgment. ”
It is important to recognise that Price Waterhouse is a civil case about fiduciary duty. The principle has to be significantly adapted for use in a Public Law situation in dealing with a statutory code. 
In this case the dictum could be restated for current purposes “There is a distinction between the physical injury and causing the mental disorder and the physical injury giving the opportunity for the mental injury”
Thus restated, I suggest it takes us only to causation. Clearly, the mere fact the mental disorder has occurred after the physical injury does not establish causation. Nevertheless Price Waterhouse does not assist with causation issues. A more direct discussion took place in Brider & Hughes v Accident Rehabilitation and Compensation Insurance Corporation.2
| X |Footnote: 2
HC Wellington AP 120/98, Judgment 3 December 1998 (Full Court, coram Doogue and Durie JJ) 
In that case the Court noted: 
‘consequence’ is little different from result, and often the two words may be used interchangeably. It may be said without stretching normal usage, that a consequence of the infection of A by medical misadventure with the transmission of that infection to B; just as it may be said that B's condition results from that which was done to A. 
In the District Court decision under appeal, the Court relied on the Latin root of the word as given in the Shorter Oxford English Dictionary to conclude that it connotes ‘follows closely,’ a reference to the last two syllables. With respect the examples given in that dictionary show that whatever the root meaning is, close proximity is not a prerequisite for the use of the word today. ”
The Hornby Decision 
In the High Court, Dobson J found at [28]: 
“Here the preferred medical evidence treated the appellant's pre-existing depression asymptomatic at the time of her physical injury in March 2000. The accident triggered her pre-existing mental injury, resulting in it becoming symptomatic. However that is not sufficient to establish causation, because the mental injury does not result from the physical injury suffered in the accident. To make such a finding is to ignore her predisposition to that consequence arising from the mental injury which she had previously suffered from. ”
In that case Dobson J used the words “result of” or “result from” in substitution for the words “because of.” The matter was appealed to the Court of Appeal, which confirmed the decision of the High Court and dismissed the appeal. At [37] it confirmed that the appellant: 
“ … essentially does not get cover because depression has nothing to do with her injury. This is not a case of susceptibility or eggshell scale, but rather one where the appellant has a condition which was not brought on by the accident … It may be relevant although the point was not addressed either by Dr Wisely or Dr Stoner that at the time of the accident the appellant was still being prescribed anti-depressant medication which presumably may have impacted on the extent to which she presented with those symptoms at the time. ”
The Court of Appeal also discussed causation in ACC v Ambros.3
| X |Footnote: 3
[2007] NZCA 304 
“The different methodology used under the legal method means that a Court's assessment of causation can differ from the expert opinion and courts can infer causation in circumstances where the experts cannot. This has allowed the Court to draw robust inferences of causation in some cases of uncertainty … However a court may only draw a valid inference based on facts supported by the evidence and not on the basis of supposition or conjecture … Judges should ground their assessment of causation on their view of what constitutes the normal course of events, which should be based on the whole of the lay, medical and statistical evidence, and not be limited to expert witness evidence …  ”
Therefore, as I understand the case law at the current time, whether the mental disorder is the result of the injury does not require direct proximity, but does require a degree of connection or causation. In Hornby, the mental condition pre-existed the accident, and therefore could not cause it. This does not dispose of the issues arising in the current case where Mr Clapp has clearly suffered the mental injury subsequent to the injury. 
In my view this matter is of some importance, given its general application within the Act. It seems, for example, to be accepted that post traumatic stress disorder could be the result of an accident, but the question is what other types of mental injury might be said to be the result of, in the sense of a material contribution to, the accident. 
The Court of Appeal did discuss causation issues briefly in Hornby, where it said (at [38]): 
… That is sufficient to dispose of the appeal. We add that we did hear argument on what the test for causation in these cases should be. That determines to some extent on the scope of Ambros. However we did not consider this an appropriate case to resolve that question given the factual underpinning the argument is absent. We appreciate the desire of the parties to get a steer from the Court on this, but the fact that 1634(4) (of the Act) states this, the decision of this Court on an appeal is final, indicates that a cautious approach should be adopted. ”
This case seems to fall into the category of cases requiring such guidance. It is one where the causation is not so clear, ie PTSD, where it can be said that the connection is direct. Nevertheless it gives rise to issues as to how material a contribution the accident would need to be, and what the degree of connection required is. 
I note that in the recent case of Rawiri4
| X |Footnote: 4
[2013] NZACC 281 
the Court was prepared to consider that ongoing mental disorders such as schizophrenia, and disassociation, may result from long term sexual abuse. Although that was a sensitive claim case it also raises wider issues of connection and causation. As psychiatric knowledge and data increases a better understanding of mechanism and causation of mental disorders has been disclosed. PTSD itself was a concept that took a considerable period for general acceptance. 
Accordingly, I have concluded that this is an appropriate case for leave to be granted to the Court of Appeal. I have not been advised that any cases on the same issue have been granted leave in the meantime, nor that any other decisions of the High Court or Court of Appeal have been issued which resolve the matter in question. On this basis I grant leave for the appellant to appeal on: The degree of causation and/or connection required between the mental injury suffered by the person and the physical injuries suffered by the person the subject of the claim, to satisfy the wording ofs 26(1)(c)“because of physical injury suffered”
I make no order for costs and no order for costs were sought. 

[2003] 3 NZLR 39 (CA) at [28] 
HC Wellington AP 120/98, Judgment 3 December 1998 (Full Court, coram Doogue and Durie JJ) 
[2007] NZCA 304 
[2013] NZACC 281 

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