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Accident Compensation Cases

Kingi v Partridge (HC, 02/08/93)

Judgment Text

[ORAL] JUDGMENT OF THORP J 
THORP J
This is an application to strike out a statement of claim on the grounds that it does not disclose any tenable cause of action and is vexatious and an abuse of process to the Court. 
The substantive proceedings are brought by the sister of the late Billie Huia Kingi, the deceased, who died on 27 February 1993 following his attendance first as an out-patient, later an in-patient of the Tauranga Public Hospital. The first defendant is a surgeon who attended the deceased at that hospital. The second defendant is a doctor who is described as having been “at all material times the medical adviser of Tauranga Hospital and responsible for the admissions system employed in that hospital”. The third defendant is the Area Health Board having responsibility for the hospital. 
Paragraph 2 of the statement of claim asserts that the plaintiff brings the proceedings “on behalf of herself and the following members of her immediate family all of whom have the same interest in the proceeding and consent to the bringing of same”: and then are named the mother and six other brothers and sisters of the deceased. It is convenient to refer to the plaintiff from this point as “the family”, intending by that term to indicate not only the named plaintiff Mrs Kingi but all those other named members of the deceased's family on whose behalf she now claims. 
Paragraphs 24 and 28 of the statement of claim allege that the first and second defendants had duties of care to the family to ensure that the deceased received appropriate medical care and was timeously admitted to hospital, and to ensure that the family did not suffer “unnecessary and prolonged emotional distress, pain, suffering and/or financial hardship as a consequence of the deceased's undiagnosed illness and continuing unexplained deteriorating health”. It then alleges breaches of those duties and that by reason of them the plaintiff has suffered 
(a)
severe and prolonged emotional stress 
(b)
inordinate pain and suffering, and 
(c)
a deterioration in both physical and emotional wellbeing. 
Each cause of action pleads that the actions of the first and second defendants “are deserving of punishment by means of an award of exemplary damages”. The family then claims against each defendant $75,000 general damages and $150,000 exemplary damages. 
Finally in the third cause of action the plaintiff claims against the Area Health Board as employer of and vicariously liable for the acts and omissions of the first and second defendants, and on that basis claims $150,000 general damages and $300,000 exemplary damages. 
There is no allegation of dependency or any form of pecuniary loss arising from any special relationship between the plaintiff and the deceased. The claim is in essence a claim by the immediate family of a patient for the emotional harm they have suffered from the death of their son or brother, which harm they allege and believe resulted from the defendants' failure to exercise due care on their behalf. 
Ms Olsen emphasised that the claim did not seek to rely upon the duty of care undoubtedly owed by the defendants to the deceased as a patient, but upon an independent duty of care said to be owed to the family. It was not, she said, a claim which depended on proof of negligence of the deceased's treatment, nor did it rely upon an extension of duty to him. It rested simply on the defendants' failure to pay proper regard to the family interests which was a totally separate and distinct obligation resting upon the defendants. For that reason she asserted it was not a claim arising directly or indirectly from the deceased's injury or death. 
Ms Olsen accepted the New Zealand Courts have not previously recognised any such duty of care as she now asserts. She also accepted that the correct approach to be adopted by this Court when considering a striking-out application in such circumstances is settled by the decision of the Court of appeal in South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd [1992] 2 NZLR 282. It may in fact be arguable that the accumulated significance of the decisions of the Privy Council in Takaro Properties Ltd v Rowling [1987] 2 NZLR 700, Downsview Nominees Ltd v First City Corporation Ltd [1993] 1 NZLR 513 and Deloitte Haskins & Sells v National Mutual Life Nominees [1993] 2 All ER 1015 may support a more conservative approach to the delimitation of new types of duty of care than was settled in South Pacific. However, it is unnecessary to examine that issue in these proceedings as I am satisfied that if the South Pacific principles be applied without amendment, they would not support recognition of any such duty of care as is basic to these proceedings. I note in this connection that the principles of South Pacific have recently received further endorsement in the Court of Appeal in Connell v Odlum (CA. 127/92, decision 17 December 1992). The basic approach to such applications as these is summarised in the first paragraph of the headnote to South Pacific as follows: 
“ … the discretion to strike out is one to be sparingly exercised, and would be justified only, if on the material before the Court and in the present state of evolution of the common law, the case as pleaded was so clearly untenable that the plaintiff could not possibly succeed. If the Court was left in doubt whether a claim might lie, or if disputed questions of fact arose, the case must go to trial. If the claim depended on a question of law capable of decision on the material before the Court, the Court could determine the question even though extensive argument might be necessary to resolve it. ”
Mr Gittos' submissions in support of the application to strike out were based on three propositions, namely — 
1)
that the claim was barred by the Accident Compensation legislation as being a claim arising directly or indirectly out of personal injury of death; 
2)
that in any event the only basis upon which the plaintiffs might be able to establish a tortious duty of care sufficient to support their claim would have been to bring themselves within the nervous shock cases, and on the pleadings they could not do so; and 
3)
that the pleadings would not support a claim for exemplary damages. 
I believe that the first of those submissions is correct. On the ordinary construction of the relevant Accident Compensation legislation the family's claim must in my view at least arise indirectly from the death of the deceased. Ms Olsen advised that she would accept that s 27 (1) of the Accident Compensation Act 1992 would prevent the present claim unless it could be based on some cause of action sufficiently distinct from any which the patient himself might have had to survive the legislative bar. In my view that approach fails to give proper recognition to the plain language of s 27 (1). On its ordinary meaning that provision does, in my view, cover the present claim. 
The careful arguments of both counsel on that part of the case would nevertheless have warranted the taking of time to review the relevant legislative authorities had it not appeared to me still more evident that the plaintiffs claim must in any event fall at the second hurdle. 
South Pacific makes it clear that in considering claims for the existence of duties of care not covered by existing authority the two broad fields of enquiry are: 
1)
The degree of proximity or relationship between the alleged wrongdoer and the plaintiff, which involves considering the degree of analogy between the particular case and others in which duties have or have not been recognised; and 
2)
Whether there are any policy considerations tending to negative or restrict the existence of such a duty as is claimed — see Richardson J in First City Corporation v Downsview Nominees Ltd [1990] 3 NZLR 265 at 275, adopted by Cooke P in South Pacific at 294. 
In the present case the degree of proximity as between the family of the defendants on the pleadings is far from direct. Indeed, the only discernible relationship between the plaintiffs and the defendants seemed to me to be that the plaintiffs were known or ought to have been known to the defendants as near relatives of the patient. Ms Olsen accepted that the mere fact of blood relationship could not provide the necessary relationship or proximity. The basis upon which that proximity was claimed, she advised, was that this family was a particularly close one, in which injury to one member would be keenly felt by the others. I was inclined to see this as of such a subjective character as to be inappropriate to form the basis for determination of proximity. However, Ms Olsen was able to refer to and rely upon the recognition of similar relationship by Lord Keith in Alcock & Others v Chief Constable of South Yorkshire [1991] 4 All ER 907. At 914D he said: 
“The kinds of relationship which may involve close ties of love and affection are numerous, and it is the existence of such ties which leads to mental disturbance when the loved one suffers a catastrophe. They may be present in family relationships or those of close friendships, and may be stronger in the case of engaged couples than in that of persons who have been married to each other for many years. … The closeness of the tie would, however, require to be proved by the plaintiff, though no doubt be capable of being presumed in appropriate cases. ”
Alcock dealt with claims by the families of people killed or injured in the collapse of the Hillsborough soccer stadium, the plaintiffs having witnessed that catastrophe on television. While the passage cited from Lord Keith's judgment appears to me to extend the concept of “relationship” further than has been thought appropriate in any other of the cases which were cited, all then was done in the other judgments in that case, it necessarily commands respect. But even if it be wholly accepted, and evidence at trial from the family of its closeness brought the plaintiffs within the principle of that statement, that would still not suffice their cause. That is because having recognised that type of relationship as one factor going towards establishing proximity, Lord Keith, joined in this by Lord Ackner and Lord Oliver, held that claims for psychiatric illness resulting from the death or injury to another with whom the claimant was in such a relationship required also proximity in time and place — that is, that the injurious consequence to the claimant must result either from actually witnessing the injury or from “the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind” Lord Oliver, at p.930, said to like effect that no prior case: 
“ … has countenanced an award of damages for injury suffered where there was not at the time of the event a degree of physical propinquity between the plaintiff and the event caused by the defendant's breach of duty to the primary duty nor where the shock sustained by the plaintiff was not either contemporaneous with the event or separated from it by a relatively short interval of time. ”
Ms Olsen argued that while the pleadings did not contemplate any single shocking event, “there must have been an accumulation of shocking events”. It can easily be accepted that evidence might be adduced of repeated disappointments and concerns. But the judgments in Alcock make it plain that such a situation would not provide the basis for their claim. See, e.g: 
1.
Lord Ackner at 917D: 
“Psychiatric illnesses caused in other ways, such as from thee experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. Brennan J in Jaensche's case ((1984) 54 ALR 417 at 429) gave as examples: the spouse who has been worn down by caring for a tortiously injured husband or wife and who suffers psychiatric illness as a result, but who, nevertheless, goes without compensation; a parent made distraught by the wayward conduct of a brain-damaged child and who suffers psychiatric illness as a result also has no claim against the tortfeasor liable to the child. ”
2.
Lord Ackner again, at 918B: 
‘Shock’ … has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system. ”
3.
Lord Oliver at 924J: 
“ … the law will not compensate such a person for the mental anguish and even illness which may flow from having lost a wife, parent or child or from being compelled to look alter an invalid …  ”
It follows in my view that the necessary propinquity and relationship is not made out. 
But even if that assessment be incorrect, it seems to me that there are clear policy reasons against adding to the duty of care to a patient an independent duty to all those “near and dear” to him, even though it is a natural consequence of his death that they will suffer an emotional loss which may in some cases result in physical ailments. Those considerations include: 
1.
The circumstances of the health system of this country is unable, and will in the foreseeable future continue to be unable, to obtain sufficient funds to provide all those in need of care with the full range of assistance which current medical knowledge would suggest and recommend were funds not limited. In that situation the effect of adding to the existing financial obligations of health providers such an obligation as is proposed here would be to reduce the system's ability to assist living patients still requiring its care. 
2.
While the Court's consideration must be principally directed to the circumstances of the present case, it must also consider the further consequences of recognising in addition to the duty to a patient a parallel duty to his family. In my view similar duties would logically have to be allowed to the families of persons whose death resulted from the negligence of others such as drivers of motor vehicles, manufacturers of plant, or careless supervisors in the workplace. On this topic, Lord Oliver's comment at p.931 of Alcock is apposite: 
“Grief, sorrow, deprivation and the necessity for caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained without compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direction for which there is no pressing policy need and in which there is no logical stopping point. ”
3.
Quite apart from any question of statutory bar, recognition of such a duty as is proposed would in my view run contrary to the principles and policies of the Accident Compensation legislation. 
4.
It is open to question whether the grant of monetary compensation to families of deceased patients by means of litigation such as this would be an unqualified benefit to them. One of the more unsatisfactory consequences of the pre-accident compensation system of claims for damages for personal injuries or under the Deaths by Accident Compensation Acts was their tendency to postpone resolution of victims'injuries until disposal of their claims — often years after the event. It may well be that recognition of such claims as the present would similarly prolong the grief and suffering of the families concerned and delay the unpleasant but inescapable need to accept the fact of loss and get on with their lives. 
The only policy factor pointing the other way is the fact that the claimants have no other means to recover for their loss. In my view that factor cannot and does not outweigh all others. 
Considering then the combined significance of the two principal factors bearing on recognition of the duty suggested, I am satisfied that no tenable case for such a duty has been made out. 
The arguments raised in relation to the availability of exemplary damages do not need separate consideration because it was properly accepted by Ms Olsen that absent any underlying causes of action, no such claim could stand. Indeed I am indebted to her for an apposite statement by Fisher J in Barlow v Humphrey [1990] 2 NZLR 373 at 376: 
“Exemplary damages do not dangle in the air as a plum to be picked by anyone who happens to pass by. The plaintiff must have an independent cause of action in her own right. ”
It follows from all the foregoing that in my view the application to strike out must be allowed, and it is. 
The defendants also sought some restriction on searching and publication. Since Mr Gittos did not challenge Ms Olsen's submission that the proceedings of the Medical Disciplinary Tribunal, which form a major and the most critical material in the statement of claim, may be published in any event, I can see no purpose in any such order, and that part of the application is refused. 

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