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Accident Compensation Cases

BRYCE v RESIDUAL HEALTH MANAGEMENT UNIT (HC, 08/09/99)

Judgment Text

RESERVED JUDGMENT OF HANSEN J 
HANSEN J
This case concerns a major tragedy. It is a particular tragedy for Leonard John Gordon Bryce, and his parents Buenaflor Montoya Bryce, and John Gordon Bryce. 
Leonard was born on the 29th October 1992 following emergency caesarean section He suffers from cerebral palsy, and cortical blindness. Sadly, he is appallingly handicapped. This state arose from severe brain damage suffered when Leonard's blood sugar levels were incorrectly monitored. The defendant accepts that this was occasioned by the negligence of a doctor in their employ. 
Initially, proceedings were issued in the name of Leonard and his parents. In relation to Leonard, they claimed exemplary damages of $400,000.00, plus additional expenses of $50,000 00. In relation to the parents, they claimed general damages of $500,000.00 each, combined exemplary damages of $400,000 00, and expenses for legal and professional services of $50,000.00. 
In the second amended statement of claim, filed on the 19th April 1999, Leonard was no longer a plaintiff. No doubt the effects of accident compensation legislation made it plain to those advising the Bryces that no claim, apart perhaps from the exemplary damages claim, could be sustained. 
In the amended pleadings Mr & Mrs Bryce alleges that they have suffered emotional and nervous shock from having had the care of a severely disabled child for the last five years, and the continuing care of such a child. They allege they have been deprived of the ability to nurture and care for a child free from disabilities, and that they have given full particulars of their psychological and emotional harm. Mrs Bryce claims $1.5 million, and Mr Bryce $1 million. Exemplary damages were abandoned. 
It is clear since the decision of the Court of Appeal in Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 that secondary victims can claim for nervous shock. In that case, an American tourist saw his wife drown in a rafting accident on the Shotover River. The Court of Appeal found that the accident compensation regime in no way prohibited such a secondary victim from making a claim. It is many years since cases of this sort have been before the New Zealand Courts. It will, therefore, be necessary to consider law from other jurisdictions in due course. However, before doing so it is appropriate to deal with the factual disputes that arose between the parties in the course of the hearing. 
THE FACTS 
As noted earlier, it was common ground that Leonard's condition was occasioned by the negligence of a doctor employed by the defendant Therefore, the Court was not required to rule on the issue that is often at the heart of such disputes. Essentially, there were only two major areas of dispute between the parties. The first related to the manner in which Mr & Mrs Bryce came to learn of Leonard's condition. This has some relevance to the legal principles that will be addressed later. The second is a dispute between the psychologist called on behalf of the plaintiffs, and the two psychiatrists called on behalf of the defendant. That dispute goes to what mental condition the Bryces are in, and the extent to which that can be attributed to this tragedy 
Mrs Bryce is a Filipino who was visiting her sister in Christchurch in 1991. She met Mr Bryce through a newspaper advertisement. They married, and before doing so she claims she ascertained that he was fertile, (because she wanted to have children) and she would be able to continue her accountancy training after marriage. It appears there were immigration difficulties, but it is unclear whether or not that was a reason for the marriage. 
Because of her age, Mrs Bryce was keen to have a child as soon as possible. She attempted to become pregnant for 7 months. At the time of Leonard's birth she was aged 33, and Mr Bryce was aged 71. It was her first child, but Mr Bryce had eight children previously from other marriages. 
HOW DID THE BRYCES LEARN OF LEONARD'S CONDITION. 
Mr & Mrs Bryces' evidence was to the effect that they had a meeting with Dr. Forster, when the full extent of Leonard's condition was revealed. Dr Forster's evidence, and the documentary evidence, suggests that, in fact, the extent of Leonard's disability was an on going situation over a longer period. Mr & Mrs Bryce advanced the same two events as the cause of the psychiatric illness they allege they now both suffer from. The first was the cataclysmic advice at one meeting when Dr. Forster advised them that Leonard had cerebral palsy and was cortically blind. The second was learning that this was caused by the now admitted negligence of the doctor concerned. 
As noted above, it is the defendant's case that the knowledge of Leonard's disability was not imparted at one meeting. Mrs Bryce's evidence in that regard can be found at paragraph 16 of her evidence 
“16. The first shock related to being told by Dr. Forster that our child was severely disabled. I remember this day clearly and will never forget it. Dr Forster had asked us to see him at Timaru Hospital. We went into his room. It was clear that he was about to tell us something very unpleasant and tragic. I remember the words quite clearly and I think I can quote them quite accurately. I accept that the quotation below will not be word perfect but it is substantially the same as what was said and the longer words used are certainly accurately reported. He said: ‘I must tell you now … you have a serious situation in front of you. Your boy is seriously incapacitated because he has Cerebral Palsy and is cortically blind … ’ ”
In relation to the second shock, the evidence is contained in paragraph 20 of the brief, which reads 
“20. The second shock related to finding out about the negligence of Dr. Morrison. This was not a gradual process of discovery on our part. I had always been led to believe that a tragic accident had occurred and this was an end to the matter. I had already suffered one enormous set back by being told that my child was permanently and severely disabled. To discover on learning of the findings of the Medical Practitioners Disciplinary Committee that the hospital was responsible for this severe disability was a blow that I felt I could not take I experienced intense feelings of rage, pain and anger. I then felt like laughing and crying uncontrollably. I felt totally out of control. ”
Mr Bryce's evidence in relation to these two events was as follows: 
“2 I have read the brief of evidence by my wife and I agree with all of the facts she has set out in that affidavit. I can say independently that I did not realise that our child was disabled until the 7th month after birth. We were told this by Dr. Forster in the way described in my wife's affidavit. I confirm that we did not discover that the hospital and Dr Morrison were negligent until after the Disciplinary Committee's decision. ”
Mr & Mrs Bryce were unable to put a date on the meeting with Dr. Forster. However, from cross-examation, and consideration of the documentary evidence, I am satisfied it must have been the meeting of the 18th May at the latest. 
Dr. Forster's evidence was quite different. In my view, his evidence is also supported by the documentary evidence. He wrote various letters to other specialists, and also reviewed Leonard on the 18th May As a result of the 18th May consultation, he wrote to the ophthalmologist, a Mr Mair. In that letter he said that he was concerned that Leonard may have some visual impairment. He did not consider he would have said to Mr & Mrs Bryce at the May meeting that Leonard was cortically blind. Following a CT scan in July he said he was able to confirm to Mr & Mrs Bryce that Leonard had a very severe insult. He meant that such a degree of cerebral atrophy, in conjunction with his static head growth, indicated a very severe deficit of intellectual and muscular ability. He had no written record of the discussion, but he was certain he had a lengthy discussion with them. Leonard did not see the ophthalmologist until 13th September, and there is a report dated 30th October that conveyed Leonard had cortical atrophy, and that he had a cortical visual defect. He may well have discussed that with the Bryces when he next saw them on the 2nd November. He said he had no note of telling the Bryces on the 18th May that Leonard was cortically blind, and, in fact, that situation was not diagnosed until after the ophthalmologist's report. He said he had formed a view when he wrote to the ophthalmologist on the 27th July that he felt this was the case, but he was only brought to that view by the CT scan which was carried out in July. He accepted that on the 27th July he may have referred to cortical blindness as a possibility, but he did not believe he could possibly have stated to the Bryces the full extent of Leonard's disability on the 18th May. Put simply, this was information he did not have at that date. Furthermore, he had no memory of Mrs Bryce being in the state she said she was in. 
There is also support for this view in Mr Marris' report. At page 9 of his brief he stated as follows: 
“Experiencing a traumatic event either as a discrete incident or, as in this situation, as a circumstance that is an enduring psychological injury, can typically lead to a variety of diagnosable situations in people ”
In cross-examation Mr Marris seemed to have difficulty accepting the plain meaning of what he said. Clearly, what he said was that the situation of the Bryces was not a discrete event, but arose from an enduring psychological injury. This was obviously based on what he was told. He seemed to insist that what he was saying was that in this case there was a discrete event. However, I cannot accept that. The sentence has a plain meaning, and having observed Mr Marris' cross-examation I was not satisfied with his explanation. What this means is, as reported to Mr Marris, that the discovery of Leonard's disability was an ongoing process. 
Overall, having observed the witnesses, and considering the evidence, I am satisfied that in relation to being advised of the extent of Leonard's disability there was not the discrete event, as described by Mr & Mrs Bryce. It was an event that unfolded over a period of time, as more information became available through the various assessments that were carried out by the medical professionals involved 
THE DISCOVERY OF NEGLIGENCE 
Both Mr & Mrs Bryce complain that there was a second significant traumatic event when they found out that Leonard's condition was occasioned by medical negligence. Again, I am not satisfied it is the discrete event and sudden shock as claimed by the Bryces. 
It is apparent that the Bryces, mainly through Mr Bryce, initiated the complaint to the Medical Council of New Zealand through their local GP in Waimate, Dr. Hammond Williamson. Investigations were carried out by the Preliminary Proceedings Committee, who obtained expert opinion from a Professor Howie. The complaint was made in November 1994 Following Professor Howie's investigation, charges of professional misconduct were brought against Dr Morrison, on the, 13th June 1995. A hearing was held in Dunedin on 8th November 1995, which led to a decision dated 5th December 1995. The charges were found proved, which perhaps was inevitable in view of Dr. Morrison's frank concessions of mistakes at the hearing. Mr & Mrs Bryce attended the hearing, and, indeed, gave evidence. 
Against that background I find it impossible to accept that they were unaware of the possibility of negligence until the findings of the committee. What Mrs Bryce said, which Mr Bryce confirmed, was that the negligence discovery was not a gradual process, and they only discovered it on learning of the findings of the Medical Practitioners Disciplinary Committee. Given the frank disclosures at the hearing of Dr Morrison, and his admission of error, his apology and expressions of regret at the hearing to the Bryces, it is clear that they were aware before the findings were delivered. In my view, it was, again, an ongoing process. They clearly had suspicions, they made a complaint, expert evidence was gathered by the committee, and at the hearing a full and frank admission of error and an apology was made by Dr. Morrison. 
DO THE BRYCES SUFFER FROM A RECOGNISED PSYCHIATRIC ILLNESS? 
The other factual dispute that requires resolution relates to the expert evidence. The plaintiffs called evidence from a psychologist Mr Marris, who asserted that both of the plaintiffs suffered from a recognisable psychiatric illness. The defendant adduced evidence from two psychiatrists, Dr Brinded and Dr Walshe. Their conclusion was that neither Mr or Mrs Bryce suffered from recognisable psychiatric illness, but Dr Brinded considered that Mrs Bryce suffered from a mild depression that was susceptible to treatment. 
All of the experts had the opportunity of examining Mr & Mrs Bryce. At the outset, I must say that I prefer the evidence of Drs. Brinded and Walshe to that of Mr Marris. I am afraid I did not find Mr Marris a satisfactory witness 
Mr Marris did a Bachelor of Science majoring in psychology at Otago University. He then had experience at Cherry Farm psychiatric hospital, with the primary responsibility of doing criminal assessments on younger people. For the last 18 to 19 years he had run a psychological clinic in Auckland, treating people with a variety of psychological difficulties, all of which he assessed, some of which he treated and some he referred on. He was not a member of the two major societies for psychologists in New Zealand. A good deal of the literature he relied on was not formally referenced work. 
He concluded that both Mr & Mrs Bryce suffered from post traumatic stress disorder, which was caused by the severe damage occasioned to Leonard shortly after his birth, and the fact that that was caused by negligence. He relied heavily an American publication Diagnostic & Statistical Manual of Mental Disorders 4th Ed, known as DSM4 in support of his view He said that there were four necessary elements to be established. Firstly, that the occurrence of an event which expectedly people would experience as being psychologically disturbing Secondly, the existence of a psychological condition after that event. Thirdly, information to suggest that the psychological condition did not exist prior to the precipitating event Fourthly, the absence of any other intervening events which might have elicited the psychological condition 
Mr Marris then reviewed those four factors, followed by a discussion of post traumatic stress disorder, and the requirements for that, as set out in DSM4. As set out in that document, these are: 
“A
Exposure to a traumatic event that involved both of 
(i)
actual or threatened serious injury or a threat to the physical integrity of self or others, 
(ii)
a response involving intense fear, helplessness or horror. 
B
A persistent re-experiencing of the event in at least one of 
(i)
recurrent and intrusive distressing recollections 
(ii)
recurrent distressing dreams of the event 
(iii)
reliving the event again 
(iv)
acute emotional sensitivity to reminders of the event 
(v)
physiological sensitivity to reminders of the event. 
C
Persistent avoidance of stimuli associated with the trauma (three required) of 
(i)
blocking of thoughts or conversations associated with the trauma 
(ii)
avoiding activities, places or people that arouse memories 
(iii)
memory blockage of an important aspect of the event 
(iv)
diminished interest in previously important activities 
(v)
feelings of detachment or estrangement 
(vi)
restricted emotional responses 
(vii)
sense of a foreshortened future 
D
Persistent and new symptoms of increase arousal (two required) of 
(i)
sleep disturbance 
(ii)
irritability or anger 
(iii)
difficulty concentrating 
(iv)
hypervigilance 
(v)
easily startled 
E
A duration of the symptoms of C and D more than one month. 
F
The disturbance causes clinically significant distress or impairment in social, occupation or other important areas of functioning. ”
Mr Marris was extensively cross examined. I do not propose to go through that cross-examation in detail. However, I am satisfied the criticism made by Mr Hodson is clearly correct. Mr Marris appears to have simply gone through DSM4 as a check list making ticks. He seems to have ignored the cautionary statement in DMS4 that: 
“The proper use of these criteria requires specialised clinical training that provides both a body of knowledge and clinical skills. ”
I am not satisfied that Mr Marris had the necessary background and experience in this particular type of illness to have the ability to carry this out. As Dr. Brinded noted, it is important that people using DSM4 do have appropriate clinical training, and that the psychologists he dealt with were all registered clinical psychologists, that is with a Masters in psychology, and then a clinical diploma. Mr Marris did not appear to have had specialised clinical training In post traumatic stress disorder. 
Overall, one of the difficulties faced by the Court is that in places Mr Marris' evidence stated something that appeared perfectly clear, but which he insisted meant something quite different in cross-examation. One example, which was referred to earlier in another context, can be found at page 9 of his evidence where he stated: 
“Experiencing a traumatic event either as a discrete incident or, as in this situation, as a circumstance that is an enduring psychological injury, can typically lead to a variety of diagnosable situations in people. ”
In cross-examation, this was dealt with as follows: 
“Now, u then started to discuss the concept of psychologically disturbing events and u say each of the bryces must be considered separately but u have picked the same event for both of them, an obvious psychologically disturbing event severe damage to Leonard shortly after his birth … yes. 
Neither mr nor mrs bryce nor any doctor knew shortly after Leonard birth he had suffered severe damage did they no although I think mrs bryce had her intuitive sense 
If u don't know how is it psychologically disturbing the disturbances arise at the point they did know and find out about the event 
That is a process that took about a year … yes. So the foundation for the opinion you reach at the end of the paper is the cause of ptsd is each case is discovery over a year their son was severely damaged yes. I think Mrs Bryce had clear indication well before than but certainly in a formal sense 
It was In no possible way Mr Marris a single event, I put it to u that it was an accumulation of bad new suspected in various ways at various time by each of them and subject to continual investigation and eventual confirmation that was the process of it indeed it needed an event to trigger the process. 
The event u picked is something they didn't know about the process was their becoming aware of it over time. 
In the next para u say something different ‘the mere single event drama … disabled’ — no one knew that that is the event the trauma is the process that as with any person evolves over time. 
That is exactly what I put to you at beginning of review of clinical literature there was no discrete incident there was a circumstances developing over a year or so in if there was psychological injury was cause of it … it required a precipitating event without the event there would have been no injury. 
The event is always as word in this context associated with something in the nature of a car crash or Mt St. Helens erupting or as in all war cases, being shot at or wounded or assaulted in some way there is nothing at all like that In this case is there … I would say there is exactly that sort of event. 
If there is they didn't know about it … they came to know about it and that is where implications of diagnosis come into play. ”
Quite clearly, in this case, there was not a discrete event. I have found the Bryces' knowledge of Leonard's condition, and the cause of it, was an unravelling process over a considerable period of time. There was not the single traumatic event that is associated with the nervous shock cases, or with post traumatic stress disorder That seemed to me clearly what Mr Marris was saying when he stated “or as in this situation, as a circumstance that is an enduring psychological injury,”. But he insisted in cross-examation there was a single discrete event, but that knowledge of it was spread over a period of time. 
Another example can be found at page 21. After dealing with the extent of Leonard's disability, and the difficulties that would cause the Bryces, he continued 
“Both parents have, in my opinion, clearly diagnosable disorders as a result of this circumstance. That is an unremarkable conclusion, perhaps, but an intuitive one which has easily able to be confirmed by the use of a rigorous framework for diagnostic appraisal. ”
One would take that to mean that being aware of the background before examination, there was an intuitive feeling that they would suffer from diagnosable disorders which was confirmed in examination and through diagnosis. But in cross-examation that was not accepted by Mr Marris. In cross-examation the following exchange took place: 
“A little later on in the middle of your over view, u say both ‘parents hv in my opinion … circumstance’ the condition in context of Leonards ‘that is unremarkable … confirmed’ yes. 
What u seem to be saying there is that when u learnt of the case u took the view u were going to find posttraumatic stress disorder and when u made investigation and had consultations that view was confirmed … no. 
Isnt that exactly what u say … no it is not what I say, until I spent the day I spent with the bryces then I hd no knowledge at all of the immediacy of their circumstances. 
Judge — What do u mean by word intuitive … when one looks back at the situation it is understandable they have responded in the way they have it fits with common sense. 
Xxd Hodson 
I suggest that anyone reading that as his hon and I would take the view that from preliminary investigation of the case u had expectation u had confirmed, there is no question at all of the process of working in reverse that is what u offer as your explanation … u are wrong u are quite wrong about that. 
U understand the difficulty one has with your report when what appears to be a plain meaning is not a plain meaning at all we are quite wrong … in my view it is a plain meaning. ”
A third example can be found in relation to comments relating to Mr Bryce Mr Hodson was cross examining on the requirements in DSM4, and in particular that dealing with helplessness and horror, the following exchange took place at page 34: 
“The next requirement is that his response involved helplessness and horror, he was anything but helpless in his approach, he attended all medical consultations he wrote letters he initiated disciplinary hearing, he established there had negligence he applied for and obtained ACC cover throughout; he managed the family finances and he did his best to look after his wife and son and brought this action today, I suggest that was a powerful and far from helpless response all of that is true, the real helplessness was his inability to change the circumstances of Leonards disablement, that is the root of the helplessness. 
He recognised that and adapted the circumstances rationally and to the best of his ability and totally reasonably to cope he did what he could yes, he did what he could he was still helpless with respect to Leonard. 
He has never said anything to us in the nature of being horror struck has he … I don't know I can only report. 
He didn't say it to u … I would have to look at my notes I think his reaction was one of horror as he reported it. 
This is one of absolutely essential components of diagnosis where is it in your report … I may not have put the horror factor into my report. ”
Essentially, Mr Marris is saying he simply omitted an essential factor from his report. I do not accept that. 
Fourthly, Mr Marris insisted that re-experiencing, which is another essential, was to be continually confronted with a situation; having it called to one's attention; having the traumatic situation called to attention. He did not accept the suggestion from Mr Hodson that in this context it means much more, it means a re-experiencing of the same shock as a summary of a constellation of feelings virtually in the same way as one experienced it the first time round. I do not accept that re-experiencing is what Mr Marris describes, but accept the evidence of Doctors Brinded and Walshe in this regard. 
It also became apparent in cross-examation that Mr Marris did not understand what was meant, in a formal sense, by a fully referenced publication. (i.e., it has the authority by its work being properly referenced under a recognised body before it is published). It is clear that most of the literature he referred to did not fall in this category. 
I do not propose to analyse Mr Marris' evidence and cross-examation further Further examples could be given, particularly in reference to the use of DSM4, and his findings in that regard. 
Both Doctors Brinded and Walshe did not accept that Mr & Mrs Bryce suffered from post traumatic stress disorder. Dr Brinded concluded that in neither Mr & Mrs Bryce was there evidence of post traumatic stress disorder, and he could not find evidence to suggest the constellation of changes and psychological responses contributing to post traumatic stress disorder. He was asked about a number of factors, and, again, I do not find it necessary to cover all of those. He was asked about re-experiencing, and he said this: 
“Now I discussed with marris the diagnostic criteria for post traumatic stress disorder set out in dsm4, item B what is your understanding of the requirement that the traumatic event is persistently re experienced in one or more of the following ways … well the key element of ptsd is that it is a condition that develops in some people following a severe shock over and over again in subsequent days weeks and months to the extent that this constant feeling they are re experiencing the event makes normal life impossible because they develop all sorts of ways of trying to avoid it happening hence the avoidant behaviours listed in dsm4 criteria whereby they try to avoid things that remind them such as specific situations or places. So the re experiencing is that it is as if the original severe shock is happening again. 
Did the bryces recount to you anything that would enable us to find they were re experiencing in that sense no I identified as mr marris did, the fact that Leonards terrible disabilities were on going and that this disabled child was constantly there in front of them reminding them all the time in a sense their lives had now changed but in my experience and understanding of posttraumatic stress disorder that would not be identified as the type of re experiencing that occurs in that syndrome. ”

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