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Accident Compensation Cases

Innes v Attorney-General (Director-General of Health) (HC, 10/07/97)

Judgment Text

ELIAS J (reserved):
The plaintiffs apply for an order that the proceeding be tried before a Judge and jury. The application is opposed by the first, second and third defendants. 
The background to the case is the death of Matthew Innes following his forcible removal by members of the police from his home to Kingseat Hospital. The Attorney-General is the second defendant named in respect of the police. In the amended statement of claim it is claimed the removal was arranged by the third defendant which is claimed to be vicariously liable for the acts of the Director of Area Mental Health and a duly authorised officer under the Mental Health (Compulsory Assessment and Treatment) Act 1992. The first defendant is claimed to be vicariously liable also to be vicariously liable for the actions of the Director of Area Mental Health Services and the duly authorised officer. 
The cause of Mr Innes's death was found by the pathologist to be “a finding of positional asphyxia occurring during transportation as the event which led to the development of hypoxic encephalopathy”. The “hypo encephalopathy” is pleaded to have resulted from one or more “internal physical factors” including an “oxygen debt” or “cardiac arrest” or to have resulted from a “cardio-vascular episode which was neither a result of medical misadventure nor a work injury”
The claim that the “cardio-vascular episode” was not a result of medical misadventure or work injury is necessary to exclude s 14(1) of the Accident Rehabilitation and Compensation Insurance Act 1992. Whether the claim is correct turns on the definition of ‘personal injury’ in s 4 of the Act which provides that “no cardio-vascular or cerebro-vascular episode shall be regarded as personal injury”, unless it is the result of “medical misadventure” or is a “work injury”. Medical misadventure is defined in the Act as “personal injury resulting from medical error or medical mishap”. In declining an application to strike out the claim, reported as Innes v A-G [1996] 3 NZLR 23, Cartwright J held it to be “arguable” that the death was not barred by the provisions of the Accident Rehabilitation and Compensation Insurance Act 1992. The final determination of that issue, as is apparent from the judgment, is likely to turn on medical evidence of some technicality and the provisions of the Act. 
The plaintiffs are the administrators in the estate of Matthew Innes and his parents. Five causes of action are alleged. The first claims damages for false imprisonment or unlawful restraint. The second claims “public law compensation” for breaches of the New Zealand Bill of Rights Act 1990. The third cause of action pleaded in relation to the first and third defendants, is in negligence and claims that they breached duties of care owed to Mr Innes which were causative of or contributed to his death. Damages are sought in respect of this cause of action. The fourth alternative cause of action is claimed against the second defendant and alleges breach of duties of care owed by the members of the police, which are said to have been causative of or to have contributed to Mr Innes's death. Again, damages are claimed. The final cause of action seeks a declaration against the fourth defendant that Mr Innes's death is not covered by the Accident Rehabilitation and Compensation Insurance Act 1992. 
It is especially in relation to the negligence causes of action and the declaration that technical medical issues of fact and the application of s 14 of the Act will have to be determined. If s 14 applies to prevent the claim in negligence, its effect upon the claim for “public law compensation” is unclear and is likely to raise a point of law of some difficulty. Difficult questions of law relating to vicarious liability arise in relation to the first, second and third causes of action. The vicarious liability of the first or third defendants turns upon construction of the Mental Health (Compulsory Assessment and Treatment) Act 1992 and consideration of what Cartwright J described as “the complex lines of financial and other accountability” between the Director of Area Mental Health Services and the duly authorised officer under that Act. Further, the liability of the defendants will require determination of the question, considered on the strike out application by Cartwright J on a preliminary basis, whether the police and the duly authorised officer were acting lawfully in detaining and restraining Mr Innes, a question which turns substantially on the provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 and questions of fact. 
The circumstances in which jury trial is available for civil claims is covered in ss 19A and 19B of the Judicature Act 1908. Where the only relief claimed is “pecuniary damages” the general rule provided for in s 19A is that “either party” can require the proceedings to be tried before a jury, subject to the discretion of the Court under subsection (5). Subsection (5) provides: 
“If it appears to a Judge before the trial— 
(a)
That the trial of the civil proceedings or any issue therein will involve mainly the consideration of difficult questions of law; or 
(b)
That the trial of the civil proceedings or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury— 
the Judge may, on the application of either party, order that the civil proceedings or issue be tried before a Judge without a jury. ”
The claims in the first, third and fourth causes of action entitle the plaintiffs to require trial by jury, unless the Judge is of the view that s 19A(5) applies. 
In the case of the claim for compensation for breaches of the New Zealand Bill of Rights Act 1990 the question of the form compensation should take (if compensation is required to provide a remedy), is an open one. The claim is not properly one for pecuniary damages. Consideration of the appropriate remedy will be a matter for the Judge and is not appropriate for jury determination: Simpson v A-G [Baigent's Case] [1994] 3 NZLR 667; (1994) 1 HRNZ 42 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , at p 677; p 59 per Cooke P; p 692; p 75 per Casey J; p 703; p 87 per Hardie Boys J; Upton v Green (1995) 2 HRNZ 305, 308 per BHas Cases Citing which are not known to be negative[Green] lanchard J. 
In the present case it is accepted that whether trial by jury is ordered in relation to the claim under the New Zealand Bill of Rights Act 1990 depends upon application not of s 19A but of s 19B. The general rule provided for in that section is that in cases not falling within s 19A civil proceedings are to be tried by a Judge alone unless the Court orders trial by jury on the basis that: 
“the civil proceedings or any issue therein can be tried more conveniently before a Judge with a jury. ”
In considering the discretion under s 19B(2) to order trial by jury, guidance as to the “convenience” of that course may be obtained from s 19A(5), as Mr Jenkin for the plaintiff submits citing Upton v Green at p 308. 
Here, as Mr Jenkin rightly points out, the causes of action for false imprisonment and negligence, are claims to which s 19A applies. The facts which give rise to those claims are the same facts upon which the New Zealand Bill of Rights claim is based. The issues of vicarious liability are the same. Indeed, the factual and legal questions which arise in relation to the negligence claim may be of more difficulty than the claim under the New Zealand Bill of Rights Act. And yet, in respect of all claims apart from the Bill of Rights Act claim, the scheme of the legislation is that trial by jury is permitted unless the Judge considers that the trial or any issue will involve “mainly the consideration of difficult questions of law” or that the trial will require “prolonged” examination or investigation which cannot conveniently be made with a jury. The circumstances in which the discretion operates to exclude trial by jury where it is available under s 19A are narrow. The availability of trial by jury under s 19A is a circumstance which is directly relevant to assessment of the convenience of trial by jury in relation to the Bill of Rights Act claim. In circumstances where claims overlap ss 19A and 19B, the Judge should consider what method of trial is best to secure the overall administration of justice: Mouat v Brydon [1961] NZLR 510Has Cases Citing which are not known to be negative[Green]  at p 511 per Richmond J. 
First, third and fourth causes of action 
In the present case, even leaving aside the claim under the New Zealand Bill of Rights Act 1990, I consider that the trial of the proceedings should be before a Judge without a jury, in application of s 19A(5). My reasons are these: 
Difficult questions of law 
Although the exact sequence of events will need to be determined at trial, the truly contentious issues are likely to be questions of law and mixed questions of fact and law, where the facts will turn on technical medical evidence. The causes of action for false imprisonment and negligence raise questions as to the application of s 14 of the Accident Rehabilitation and Compensation Insurance Act 1992. Extensive legal argument is likely to be required. 
The liability of the first and third defendants for false imprisonment and negligence turns on whether they are vicariously liable for the actions of the Director of Area Mental Health Services or the duly authorised officer. That is a mixed question of law and fact which will require analysis of the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the relationship of the first and third defendants to the Director of Area Mental Health Services or the duly authorised officer under that Act. The decision of Cartwright J indicates that, insofar as the assessment of vicarious liability turns on matters of fact, it will be necessary for the hearing to consider “the complex lines of financial and other accountability” between the Director of Area Mental Health Services and the Director-General of Health. 
The questions of law are inextricably mixed with the questions of fact. It is not sensible to separate them out. If the trial were held before a jury practical difficulties would result of the type identified in Shattock v Devlin (1988) 1 PRNZ 271Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . Framing questions for the jury is likely to be complicated and resolving questions of law in the absence of the jury would entail delay and inconvenience. There is no commensurate benefit to be obtained from jury involvement here, such as would be the case for example in a defamation action where gauging community standards through a jury is particularly desirable: see Prebble v TVNZ (1992) 6 PRNZ 113Has negative litigation history or citing cases, having been wholly or partly reversed or overruled[Red] . A Judge sitting alone is qualified to decide questions of negligence and false imprisonment without the assistance of a jury. 
In Racz v Home Office [1994] 2 AC 45; [1994] 1 All ER 97 (HL)Has Cases Citing which are not known to be negative[Green] , the House of Lords indicated that trial by jury was not appropriate in a case where the precise ambit of the tort under which claim was made (in that case misfeasance in public office) was uncertain and likely to lead to “prolonged legal argument in the absence of the jury”. The questions of law in issue in the claim, are novel and difficult. They are likely to entail considerable legal argument. 
Prolonged examination or investigation of technical questions 
Critical to the application of s 14 of the Accident Rehabilitation and Compensation Insurance Act 1992 will be the determinations whether the cause of death of Matthew Innes was a “cardio-vascular or cerebro-vascular episode” and whether, if so, it falls within the definition of personal injury. As the judgment of Cartwright J indicates, medical evidence as to the cause of death and as to what caused any such cardiovascular or cerebrovascular episode will be critical. Cartwright J drew a distinction between a “cardio-vascular” incident which occurs naturally and one which is “simply one link in the chain of incidents triggered accidentally which ultimately led to Matthew's death” (p 245). This suggests, as counsel for the third defendants submit, that it may be necessary for the medical and scientific experts to draw “fine distinctions between the factors which actually triggered the chain of events which resulted in [the] death and those matters which simply formed part of the chain”. In addition, the medical evidence will be required to link the actions for which the defendants are responsible causatively with the death. The need for such medical and scientific evidence in cases of personal injury was thought to be unsuitable for jury determination in Green v Matheson [1989] 3 NZLR 564Has Litigation History which is not known to be negative[Blue] , 571 (where the Court of Appeal did not however have to deal with the question and indicated a preliminary view only), X v Y [1996] 2 NZLR 196, 222 (HC)Has Cases Citing which are not known to be negative[Green] , and Lindon v James Hardie [1994] 1 NZLR 592, 597; (1993) 7 PRNZ 325, 329 per THas Cases Citing which are not known to be negative[Green] horp J. 
Mr Jenkin submits that difficult medical issues were frequently left to juries in personal injuries claims before the accident compensation regime was introduced. It would, however, in my view be unwise to derive much comfort from that circumstance. In the first place, the application of s 14 of the Act, may necessitate a more exacting medical inquiry than causation of injury. The legal questions are not settled, which makes comparison with the position pre-accident compensation strained. Secondly, it would be unrealistic not to acknowledge that, with the advent of the accident compensation system, civil juries have become uncommon except in defamation claims. The lack of present familiarity with using juries in cases involving personal injury may impose costs. Such costs may take the form of delay in the hearing, or inconsistency in outcome, particularly in quantification of damages. Although the New Zealand experience is not exactly parallel with the English, the caution expressed by Lord Denning MR in Ward v James [1966] 1 QB 273, 296; [1965] 1 All ER 563, 572 (Eng CA)Has Cases Citing which are not known to be negative[Green]  in considering the appropriateness of reverting to trial by jury in cases of personal injury seems apt. Over the last few decades we have got out of the way of jury trial in such cases. The defendants claim, too, that the questions of vicarious liability are likely to entail lengthy examination of documents. It is not clear to me whether that is because the relationship between the Director-General and the Director of Area Mental Health Services in part turns upon contractual instruments rather than statute. If that should be the case, and on behalf of the plaintiffs Mr Jenkin did not suggest that it was not, it would be a further circumstance, specifically acknowledged by s 19A(5), prompting Judge alone trial. 
Because of the difficult questions of law and fact entailed in the first third and fourth causes of action, it is in the interests of justice that the claims are determined by a Judge alone, notwithstanding the provisions of s 19A(l). 
Second cause of action — breach of the New Zealand Bill of Rights Act 1990 
Claims for compensation under the New Zealand Bill of Rights Act 1990 may come to be thought suitable for determination by a jury once the principles governing such claims are settled. But that position is not yet reached. The present claim raises legal issues of such difficulty and novelty that trial by jury, far from being “convenient” would in my view be unmanageable. 
In addition to the questions of application of s 14 of the Accident Rehabilitation and Compensation Insurance Act 1992 and the technical medical questions which are common to the other causes of action, the claim raises difficult questions of apportionment. The liability under the New Zealand Bill of Rights Act 1990 of the Director of Area Mental Health Services (for whom the Director-General of Health is alleged to be vicariously liable) and Counties Manukau Health Ltd raises legal issues which have not yet been addressed. 
The principles upon which compensation for breaches of the Bill of Rights Act are available are not settled. Whether any such remedy is available turns in the first instance upon whether there is any other remedy. Whether compensation is the “remedy which will best vindicate the right infringed” is a matter for assessment by the Judge in the circumstances of the particular case. 
It may be doubted that there would be a role for the jury in quantification. It is not clear whether compensation to Mr Innes's estate, should the claims succeed, will be found to be appropriate. 
Where the legal principles are so unsettled, it is difficult to see that there is any real scope for jury participation. At the very least, the likelihood of substantial legal argument in the absence of the jury suggests that to permit trial by jury in this case would be seriously inconvenient and not in the interests of justice. 
For the reasons given, the application is declined. 

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