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Accident Compensation Cases

Cochrane v Accident Compensation Corporation (HC, 23/08/93)

Judgment Text

ORAL JUDGMENT OF GREIG J 
GREIG J
This is an appeal against the decision of the Accident Compensation Appeal Authority, Judge A W Middleton, given on 13 December 1991. In that decision he rejected the appellant's claim that what she had suffered was personal injury by accident under the Accident Compensation Act 1982. His decision is based on his view of the authorities that were presented to him on the occasion of the appeal before me. In particular he relied on the decision in Accident Compensation Corporation v F [1991] 1 NZLR 234; [1990] NZAR 492, in which the application for compensation as personal injury by accident was refused because the injury was based upon an accident to another person and, it seems, because the decision there was that the mental consequences must be parasitic on an earlier injury to the claimant. 
This appeal has been brought because the Court of Appeal, in Accident Compensation Corporation v E [1992] 2 NZLR 426, in a decision given some seven days after the decision appealed from in this case but of course without the Appeal Authority's knowledge, the reasoning in F's case was disapproved. 
The circumstances of this case are that the appellant's son died in November 1987 as the result of the criminal acts of a number of people. They had administered to the son a savage and prolonged beating and torture. They then literally threw him out of a car at the door of the hospital in what is described as a moribund and, indeed, a dying condition. He was immediately transferred to the Casualty Department and in intensive care was given such treatment as was possible. He had been conscious when first taken to intensive care but by the time his parents were informed and came to the hospital some five hours had elapsed and he was no longer conscious. He never regained consciousness but died about 20 hours later with his mother, who had remained in a vigil, by his bed. The circumstances of that vigil were clearly of the most distressing kind and would have been a fearful experience for anyone, let alone a mother. 
There then followed legal proceedings against the culprits. Seven men were eventually convicted of manslaughter and were sentenced. There were, however, two trials and a subsequent appeal and it was not until August 1989 that the criminal proceedings came to an end with the Court of Appeal decision increasing sentences on the men involved. That experience, prolonged as it was, was a further distressing experience for the mother. Added to that were some threats and further fears of retaliation and vengeance from the culprits and their associates. The appellant has also had a strong sense of grievance about the Police actions, no doubt the Court procedures and, of course, towards her son's killers. 
It was not until October 1990 that a claim was first made to the Accident Compensation Corporation. That claim was based upon the emotional stress and trauma that the appellant had suffered. She described it as arising out of her son's death. The application form was accompanied by a long hand-written description signed by the appellant in which she dealt in considerable detail with the background and the history of the matter over the intervening three years. The only expert medical advice which accompanied her application was a simple first medical certificate on the Corporation's form in which a medical practitioner gave his opinion that the injuries referred to in the certificate constituted personal injury by accident. The Corporation obtained an opinion from Dr Graham Cliff, a consulting psychiatrist, who interviewed the appellant on 4 December 1990 and gave his opinion dated on that day. His assessment is set out in the final paragraph of that document in these words: 
“There is no doubt as to the fact that Mrs Cochrane is suffering from an unresolved, prolonged grief reaction as a consequence of her son's death. ”
In the course of his opinion, which is quite short and deals in some detail with the general background of the circumstances of the matter, the psychiatrist's description of the situation of the appellant at that time was set out in this way: 
“She daily thinks of him constantly, to such an extent that she is distracted from her ordinary thoughts. She lies awake late into the night thinking of him, and usually snatches no more than three or four hours sleep afterwards. She sometimes dreams of him being attacked and mutilated. ”
There is also reference to false recognition which the psychiatrist describes as a common phenomenon in the early stages of the mourning process. She is unable to continue her work and there is reference to frequent tension, irritability and hyper-vigilance. There is, however, an absence of any finding of depression or psychiatric disorder. 
I think it can be said at once that I have no doubt, on that material at the time the opinion was written, the appellant was suffering from a mental injury such as on its own would qualify as personal injury by accident. 
This case has been very carefully and fully argued on both sides. The appellant must no doubt think that she is a part of some kind of technical experiment in the way in which the argument was presented to me but I think it is fair to say that neither counsel nor the Court at any time forgot the particular plight and the circumstances of the appellant herself. It is necessary in a case such as this to look at the matter dispassionately with a view to interpreting appropriately and correctly, as far as one may, the law, and in this case the particular statute that applies. It is necessary then to decide whether the particular circumstances of the case, without any particular feelings of sympathy or prejudice, fall within the ambit of the Act. 
Sometimes cases such as this are test cases. The decision will affect or may affect the future conduct of the Corporation and the way in which claims are to be dealt with. The situation in this case, however, is that apparently, in response to the indication by the Court of Appeal in E, that policy matters are for the legislature and not the Court, the legislature has amended the Act and under the new law this kind of claim will no longer be possible as a matter of accident compensation (see Accident Rehabilitation and Compensation Insurance Act 1993 ss 4 (1) and 8 (3)). It may therefore be that the decision in this case has little, if any, precedent effect although that, of course, is not in any way decisive or determinative of the decision I come to. 
Following the decisions made in Green v Matheson [1989] 3 NZLR 564, Willis v Attorney-General [1989] 3 NZLR 574 and Accident Compensation Corporation v E, all in the Court of Appeal, I think I can extract the following general principles as applicable to this particular case. There is no need for the applicant under the Act to show physical injury. It is not necessary to add on mental consequences to some previous or pre-existing physical injury. A mental injury alone will be enough to constitute personal injury by accident. It is not necessary that there should be an accident in the sense of a separate identifiable event apart from the injury whether physical or mental. 
Nervous shock or mental injury suffered by a person who is not physically injured is not excluded. It is not necessary that the applicant should be directly involved in the accident or the events which caused the mental injury or the nervous shock. As with the common law claim for nervous shock a person may be covered and what occurs to that person or what that person suffers may be personal injury within the meaning of personal injury by accident when she comes upon an accident or is involved in the result of an accident. It is not just a question of finding mental consequences of an accident within the terms of the extended definition of personal injury by accident, particularly that part of the definition in para (a) (i). There is a difficulty in finding consequences without some original or originating injury. There needs to be, as is said in Willis's case, some personal injury by accident before the physical or mental consequences can be added on. 
This is not a claim like E. In my judgment there was here an identifiable incident which cannot be described as otherwise than an accident. The summons to the hospital, the fearful sight which was then presented to the applicant and the following period of vigil ending in the son's death, cannot be described otherwise than an untoward unexpected event, a mishap, an accident which occurred to the mother, the appellant. 
Because of a change in the law by the decision in E's case the judgment of the Accident Compensation Appeal Authority was in error but it was an error only on the legal question. He had not, as a result, considered the merits of the case at all but had decided it, as he was entitled to, on a legal technical point. On the material before me, as I have already indicated, I am satisfied that the appellant suffered an injury, a mental injury, which was sufficient to qualify under the phrase “personal injury by accident”. That was the injury that was identified and described by the consulting psychiatrist in December 1990. I am satisfied too, as I have already indicated, that there was an accident and the hospital events are sufficient for that purpose. The difficulty in this case, at the present state, is the evidence or rather the lack of evidence to link the accident and the injury so as one can say that there has been personal injury by accident. 
Mr Miller has put to me, as strongly as he could, that with the tragic events such as occurred in this case it must be seen to be causative of the injury. The difficulty is that it is not, I think, an area in which a Judge can, of his own knowledge, come to a conclusion. It is a matter in which expert opinion is required. Of course it is not necessary that the accident should be the exclusive cause of the injury. It must, however, be a cause which contributes to the injury. Once that is the case then the consequences that follow from that, again as proposed by expert opinion and as found by the Corporation or the Appeal Authority or the Court, will suffice. 
There are clearly a series of events which have occurred resulting by 1990 in a state in which this appellant reacted and suffered harm and effects different to and beyond what might be expected from a mother who has lost her son. There are, however, a number of cases where others, and others who lose loved ones, while suffering grievously do not suffer injury such as could be found to be within the term personal injury by accident. The medical opinion in this case is, I think, equivocal in the state in which I find it. The doctor does speak of the particular distress in the hospital but also talks of other matters which, as he puts it, compounds the current distress. I am unable to come to a final conclusion on this but I think the matter can be properly dealt with by being remitted back to the Appeal Authority for hearing and determination in accordance with the judgment that I have now given. This may well be a case in which it would be appropriate for the Appeal Authority to rehear the matter de novo or at least in respect of the medical or psychiatric part of the matter so that the causation, if it is to be found, can be properly canvassed. That, of course, is a matter for the Appeal Authority to decide. 
In the result, then, the appeal is allowed and the matter is remitted to the Appeal Authority for hearing in accordance with my judgment. 
I think costs should follow the event and there will be an order in favour of the appellant against the respondent in the sum of $1,000 together with disbursements and other proper expenses to be fixed by the Registrar. 

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