Meikle v Accident Compensation Corporation HC Wellington CIV-2011-485-0009

[2011] NZHC 1374

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-0009

UNDER  the Accident Compensation Act 2001

IN THE MATTER OF     an application for special leave to appeal under s 162

BETWEEN  ERIC MEIKLE Appellant

ANDACCIDENT COMPENSATION CORPORAATION

Respondent

Hearing:         4 August 2011

Counsel:         M Dao and E Wilson for Appellant

A D Barnett for Respondent

Judgment:      17 August 2011

JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on 17th August 2011.

Solicitors:

John Miller Law, Wellington

A D Barnett, Barrister, Wellington

ERIC MEIKLE V ACCIDENT COMPENSATION CORPORAATION HC WN CIV-2011-485-0009 17 August

2011

[1]      Mr Meikle applies to this court for special leave to appeal a decision of His Honour Judge Ongley of 11 July 2008.   Judge Ongley dismissed Mr Meikle’s appeal finding he did not have cover under the Accident Compensation Act 2001 (the Act) for his ongoing incapacity because it was not an outcome of an earlier personal injury.  It was rather the result of a pre-existing mental condition.  The Judge upheld the Accident Compensation Corporation’s (ACC) view under s 117(1) of the Act that it was entitled to be “not satisfied” that Mr Meikle was entitled to continue to receive coverage.

[2]      An application for leave to appeal Judge Ongley’s decision was dismissed by His Honour Judge Beattie on 15 December 2010, hence the current application to this court for special leave.

Facts and decision appealed from

[3]      The applicant worked as a gas compactor operator in 1996.  Vibration from the compactor caused him low back strain and associated pain.  He was given cover for his physical injury.  His back pain did not resolve itself even though before long, the evidence of tissue damage related to the injury disappeared.   There was thus, within a relatively short period, no neurological or physiological reason for his pain. The evidence before Judge Ongley suggested the applicant had either chronic pain syndrome or a conversion disorder. These are psychological conditions.

[4]      As Mr Meikle’s accident occurred in 1996, the operative Act is the Accident

Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act).

[5]      The Judge indicated that he generally preferred the report of a Dr Du Plessis, a neurologist, in this regard.  The Judge summarised his take on that evidence in the judgment.  He said:1

The  original  injury  was  a  minor  back  strain  that  should  have resolved in a few weeks;

1 At [16] and [17].

It is difficult to believe that such an injury could result in an apparent focal neurological abnormality;

That is reinforced by the negative objective investigations including x-ray, MRI and neurophysiological investigations;

His reactions are totally disproportionate to the clinical findings; The diagnosis is that of conversion disorder;

There is no apparent pre-existing or degenerative condition; The diagnosis of chronic pain syndrome is incorrect;

He  has  become  a  chronic  invalid  as  a  result  of  his  conversion disorder and even with psychiatric or psychological care he may not accept that there is no organic pathology;

If the condition is “cured” then another will arise;

He is not malingering, but he most definitely suffers from a conversion disorder, which is now “causing” his ongoing symptomatology.

The significance of a diagnosis of conversion disorder is that it is not likely to be the outcome of a physical injury in the same way as a chronic pain syndrome which is caused by injury related pain becoming entrenched.

[6]      Dr Du Plessis argued that conversion syndrome is independent of the injury and is likely to attach to any cause that is plausible for the patient.  Dr Du Plessis’ thesis was that Mr Meikle’s underlying psychological condition was opportunistic in that it manifested whenever a convenient or triggering injury occurred.

[7]      At [37] the Judge suggested that there will sometimes be situations where the evidence demonstrates physical injury is not a sufficient cause of the patient’s symptomology:

Perhaps accident related causation tends to be more easily accepted when there is stronger evidence of an initiating physical cause of pain.  Where the physical cause of pain is less prominent, it is more likely to appear that the major cause lies elsewhere and that the injury event is not a real and substantial cause of the pain condition.

[8]      And at [39]:

In the legal context of causation a conversion disorder is more likely to be precipitated than caused by an injury event. The underlying cause is soundly established  in  the  person’s  psychological  make-up  and  is  likely  to  be attached to an event with particular significance.

[9]      And at [41]:

The pain that [Mr Meikle] began to experience was beyond the pain that was likely to follow the injury event.  There is a logical basis for Dr Du Plessis’ diagnosis of a conversion disorder that would arise in various guises “opportunistically”.  The prevailing medical view is that the effects of the injury were minor or negligible in comparison with the pain syndrome that developed.  It developed quickly and disproportionately, which is suggestive of a strong psychiatric or psycho-social influence rather than primarily a response to the sensation of acute pain.   The onset in this case appears different from cases where persistent pain is the main impetus for a disorder in which the pain becomes chronic.

[10]     His Honour concluded that Mr Meikle had not been able to show that the

“accident event” was a real and substantial cause of his chronic pain.

Arguments

[11]     Despite the terms of s 162, the Respondent did not take issue with the late application to Judge Beattie for leave to appeal.   Nor did counsel make any submission in respect of jurisdiction on application before me.  I will put that matter to one side accordingly.

[12]     The applicant advanced four arguments in support of special leave as follows:

(a)      Judge Ongley did not have sufficient grounds to be “not satisfied”

under s 117;

(b)the Judge wrongly concerned himself with whether the mental injury was  caused  by  the  “accident  event”  rather  than  by  the  “physical injury” in terms of the 1992 Act;

(c)      the Judge wrongly concerned himself with whether the accident was a “real and substantial cause” of the mental injury rather than whether the mental injury was an “outcome” of the physical injury as required by s 4(1) of the 1992 Act;

(d)the  Judge  should  have  considered  cover  for  the  mental  injury separately to cover for the physical injury.

[13]     Ground (d) above was introduced orally by counsel in argument before me. It was not in the application or written submissions and was not extensively developed.  Counsel for the ACC argued that none of these grounds was advanced before Judge Ongley on appeal.  In addition, the Respondent argues that none of the grounds advanced raises a question of law in light of the learned Judge’s factual findings.

Special leave threshold

[14]     The threshold requirement for special leave to be granted by this court is that the applicant must raise a question of law capable of serious and bona fide argument. The following principles regarding special leave were usefully set out by Fisher J in Kenyon v Accident Compensation Corporation:2

(a)       The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly:  Sandle v Stewart [1982] 1

NZLR 708 (CA);

(b)       Although it is ultimately a matter for the discretion of the court, it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success:   Sandle; Manawatu Co-op Daffy Company Limited v Lawry [1988] DCR 509; Brown v Chowinein Fashions Limited (1993) 7 PRNZ 43;

(c)       The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course:  O’Loughlin v Healing Industries Limited (1990) PRNZ 464;

(d)       It is for the applicant to show that leave is required in the interests of justice:  Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR

86 (CA);

(e)       As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account:  Brown v Chow/nein Fashions Limited (supra).

Applicant’s grounds (a), (b) and (d)

[15]     There is no substance in the applicant’s first ground of argument.  It is true that  the  learned  Judge  does  not  specifically  turn  his  mind  to  s 117,  potentially

2 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].

engaging the dictum of Mallon J in Ellwood v Accident Compensation Corporation.3

But it is abundantly clear that His Honour concluded there was insufficient causal nexus between the physical injury and Mr Meikle’s mental condition.   The Judge turned his mind to the fine distinctions contained in the opinions of the several experts whose reports were placed before him.  He concluded that the physical injury had not caused the psychological injury in the sense required by the Act.  If he was right in that conclusion in terms of the correct legal test for causation, then obviously s 117(1) is satisfied from the Corporation’s point of view.

[16]     Nor do I think there is any substance in the distinction drawn in ground (b) between the Judge’s reference to “accident event”, and the statutory language of “physical injury”.  The point is no more than semantic.  The Judge’s conclusion at [45] demonstrates this. He said:

The  injury  is  not  shown  to  be  a  substantial  and  effective  cause  of  the

appellant’s continuing condition.

[17]     He may have employed loose language in an earlier part of the judgment but this did not distract him at the key point.

[18]     The  fourth  ground,  raised  by  the  applicant  in  oral  argument,  is  equally lacking in merit since, whether considered separately or together, s 4(1) of the 1992

Act requires the mental injury to be an outcome of the physical injury.

Causation

[19]     Thus, the only argument that raises any possibility of founding a question of law capable of serious and bona fide argument relates to the third point – loosely the question of causation.

[20]     The learned Judge considered the appropriate test to be whether his low back

injury  was  a  “substantial  and  effective  cause”  of  the  appellant’s  condition.

3 Ellwood v Accident Compensation Corporation [2007] NZAR 205 (HC).

Elsewhere in the judgment reference is made to “a real and substantial cause” of the

pain condition.4

[21]     To obtain coverage the 1992 Act  requires any mental injury suffered  by Mr Meikle to be “an outcome” of the physical injury.  In this case the facts as found by  the  learned  Judge  are  that  Mr  Meikle’s  underlying  psychological  disorder becomes symptomatic only when an injury occurs.   The disorder causes serious symptoms to persist well after the physical injury has abated.  Thus the underlying disorder is opportunistically triggered or precipitated by physical injury.

[22]     A possible question is whether the term “outcome” in s 4(1) is intended only to mean substantial and effective cause or real substantial cause (to use the terminological variations adopted by the Judge).    Put another way, is the psychological disorder (now that its symptomology is no longer reliant on continuing physical injury) still “an outcome” of the injury trigger in terms of s 4(1)?  There is no case directly on point.   There are analogous cases that would say no.   See

Cochrane v Accident Compensation Corporation.5

[23]     It is necessary to briefly summarise the cases dealing with causation in its many guises under the various incarnations of the ACC legislation – at least those drawn to my attention during the hearing.

[24]  In Atkinson v Accident Rehabilitation Compensation and Insurance Corporation,6 the Court of Appeal addressed causation in the context of a baby who had suffered brain damage from hypoxia suffered while in hospital care.  It was not proved that medical misadventure caused the hypoxia.

[25]     Section 8(2)(a) and (b) of the 1992 Act requires that the personal injury be

“caused” by the relevant event or process.  Paragraph (d) required the personal injury to be the “consequence” of treatment for personal injury.

4 At [33].

5 Cochrane v Accident Compensation Corporation [2005] NZAR 193 (HC) at [25], set out at [33]

below.

6 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002], 1 NZLR 374 (CA).

[26]     Medical  misadventure  is  defined  in  s 5(2)  as  meaning  “personal  injury resulting from medical error or medical mishap.”  Thus, there were three different words used to describe a necessary link: caused, consequence and result.  Richardson P for the court said:7

In some contexts there may well be different shades of meaning in expressions such as “cause”, “result”, “consequence”.  In other contexts they may be interchangeable. What is more important for present purposes is that each expresses the need for a link to be established between the Act or omission in question and the injury.  And in s 5(1) “resulting from medical error” reflects the natural grammatical flow.

[27]     In response to arguments advanced by the appellant who sought to draw analogies with recent developments in the common law of negligence, the court said:8

Public policy considerations have led to developments of the common law in relation to causation.  But the public policy of the 1992 Act must be drawn from its statutory provision.  Our concern must be the policy of the statute rather than the policy of the common law.  The 1992 statute in this regard is outcomes focussed.   Risk or potentiality of injury is not enough to attract cover. And that may well have been seen as part of the policy package under the statutory no fault accident compensation scheme.  (emphasis added)

[28]     In Hornby v ACC9, the appellant had broken her arm.  The question for the Court of Appeal was the impact of her pre-existing anxiety and depression on her entitlement  to  cover for mental  injury.    Section  21(1)  of the  Injury Prevention, Rehabilitation and Compensation Act 2001 (the 2001 Act)10 defined personal injury to include “mental injury suffered by a person because of physical injuries suffered by the person.”

[29]     Ellen France J for the court held at [37]:

Essentially, the appellant does not get cover because her depression has nothing to do with the injury.  This is not a case of susceptibility or eggshell skull but, rather, one where the appellant has a condition which was not brought on by the accident.

7 Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002], 1 NZLR 374 (CA) at [21].

8 At [25].

9 Hornby v Accident Compensation Corporation [2009] NZCA 576, (2010) 9 NZELC 93, 476.

10 The Accident Compensation Corporation Act 2010 changed that Act’s name to Accident

Compensation Corporation Act 2001.

[30]     The  physical  injury  made  her  symptoms  worse  but  did  not  cause  her depression.  Thus, “because of” was, unsurprisingly, found by the court to require some kind of causal link.

[31]     Harrild v Director of Proceedings related to the question of whether a mother could sue her obstetrician in damages for the stillbirth of the mother’s child.11   Under s 20 of the 2001 Act, a person has cover if the personal injury is “caused” by medical misadventure.  Elias CJ (joined in this respect by Keith and McGrath JJ) adopted the following formulation:12

The  policy  of  the  legislation  is  to  provide  comprehensive  cover  to compensate for personal injury, including mental injury which results from physical injury, in replacement of the remedies previously available under the common law.   I agree with Keith and McGrath JJ that the legislative policy is not to be undermined by an ungenerous or niggardly approach to the scope of the cover provided.

[32]   Accident Compensation Corporation v Ambrose was also a medical misadventure case.13   Mrs Ambrose was hospitalised shortly after childbirth and died six days later.  She died as a complication of spontaneous coronary artery dissection (SCAD) a condition generally, but not exclusively, connected with pregnancy and childbirth.  Actual connection was not positively proved in this case.  For the court Glazebrook J said s 39(2)(b) of the Accident Insurance Act 1998 provides cover for personal injury “caused” by medical misadventure.  In light of the statutory language the court found that causation must be positively proved.  Proof that the particular

misadventure created a high risk of the actual outcome occurring was not enough.

[33]   McDonald  v Accident  Rehabilitation  and Compensation  Insurance Corporation14 was about the relationship between disease and injury.  Mr McDonald injured his knee at work.  It accelerated an underlying osteoarthritic condition.  The medical  evidence  was  the  underlying  condition  had  eventually  overtaken  any residual effects of the knee injury.  Panckhurst J considered the meaning of s 10 in light of these facts.  Section 10 denies cover where the incapacity is caused “wholly

or substantially” by gradual process or disease.  His Honour adopted the reasoning of

11 Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA).

12 At [19].
13 Accident Compensation Corporation v Ambrose [2007] NZCA 304, [2008] 1 NZLR 340.

14 HC Christchurch AP2/02, 20 May 2002 Panckhurst J.

the District Court in an earlier case.  It is worth citing a short passage from that part of the District Court decision that Panckhurst J relied on:15

…  If  medical  evidence  establishes  there  are  pre-existing  degenerative changes  which are brought to light  or  which become  symptomatic  as  a consequence of an event which constitutes an accident, it can only be the injury caused by the accident and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered.  The fact that it  is  the  event  of  an  accident  which  renders  symptomatic  that  which previously  was  asymptomatic  does  not  alter  that  basic  principle.    The accident did not cause the degenerative changes, it just caused the effects of those changes to become apparent and of course in many cases for them to become the disabling feature.

[34]     Section 10 is of course directed at a different issue to s 4(1).  The decision nonetheless addresses the general concept of causation in this Act.

[35]     Cochrane  v  Accident  Compensation  Corporation  was  another  back  pain case.16    This time the issue was the relationship between back degeneration and injury.  The operative section of the 1992 Act was again s 10 which as I have said excludes cover where personal injury is caused “wholly or substantially” by gradual process or disease.   Miller J found that the District Court applied the wrong test. Miller J said that:17

The appellant was [wrongly] called upon to show that his incapacity was not wholly or substantially caused by pre-existing degeneration of his spine. The question ought to have been whether he could show that his incapacity was caused in some degree by the injury for which he was granted cover. (emphasis added)

[36]     In the end Miller J found that:18

An appellant may not establish causation simply by showing that the injury triggered an underlying condition to which the appellant was already vulnerable (the “eggshell skull” principle) or that the injury accelerated a condition that would have been suffered anyway (the “acceleration” principle): MacDonald v ARCIC [2002] NZAR 970. The question is simply whether the necessary causal nexus continues to exist between the injury and the condition.

15 Hill v Accident Rehabilitation and Compensation Insurance Corporation Decision 189/98,

5 August 1998 Beattie DCJ.

16 Cochrane v Accident Compensation Corporation [2005] NZAR 193 (HC).
17 At [24].

18 At [25].

[37]     Miller  J  was  of  the  view  that  a  trigger  to  a  pre-existing  condition  was insufficient to establish causation even on the comparatively low standard of causation “in some degree”.  The Judge also considered that “the final straw” that caused an underlying problem to become symptomatic would not be sufficient.

[38]     A similar conclusion was reached by Simon France J in Johnston v Accident Compensation Corporation in another s 10 case.19     Notably His Honour took the view that traditional “but for” causation is not sufficient on its own to achieve cover under the 1992 Act.   The test in his view was “whether the accident  caused a physical injury that is presently causing or contributing to the incapacity”20

[39]     Comerford-Parker  v  Accident  Compensation  Corporation  a  May  2011 decision of Gendall J,21  is the only case brought to my attention that addressed the same provision as is in issue in the present case. The question was:22

Whether  “outcome”  as  provided  in  s 4  of  the  Accident  Rehabilitation Compensation Insurance Act 1992 covers not only the precipitating cause of a mental injury but also the perpetuating cause.

[40]     The appellant was burgled.   In trying to escape the situation she fell and injured her knee.   She later developed PTSD.   Gendall J found that there was no causal link between the mental injury and the physical injury.  He found:23

“Outcome” must encompass “resulting from”, or “as a consequence of” in the sense of having a logical connection in a causative sense.  Naturally there can be more than one cause of a resulting event, condition, or situation.  But it is clear from the legislative history that Parliament has intended there to be some initial physical injury to that person which results, in addition, to a consequent mental injury.

[41]     On the facts, Gendall J agreed with the District Court that the PTSD was a result of the burglary not the knee injury.

[42]     So much for the ACC causation cases. Their effect in my view is as follows:

19 HC Wellington CIV-2010-485-424, 23 September 2010 emphasis added.

20 At [14].

21 Comerford-Parker v Accident Compensation Corporation HC Wellington CIV-2011-485-117,

26 May 2011.

22 At [2].

23 At [21].

(a)      There  is  no  previous  decision  directly  deciding  the  question  of whether a condition that requires an injury to become symptomatic can be said to be an outcome of the precipitating injury;

(b)Multiple language is used within each Act and among the various Acts since 1992 to convey the requisite degree of causation in their respective contexts;

(c)      Some require the relevant event, injury or process to be the dominant cause  (see  for  example  s 10  of  the  2001  Act  as  to  physical degeneration: Cochrane) while others require only contributory causation (see for example Comerford-Parker and outcomes);

(d)Except where the Act requires a judgment about the dominant cause of a condition, the cases all apply the same minimum requirement of material causation whether the language is “resulting from”, “because of”, “consequence of”, “caused by” or “outcome”;24

(e)       Satisfying the traditional “but for” test will not be enough to prove

causation under the Act (Johnston);

(f)      An opportunistic physical trigger for an underlying psychological condition  is  not  a  sufficiently  material  cause  even  where  the legislative language permits cover where there is causation “in some degree” (Cochrane).

[43]     It follows that although the question I have posed is a legal question, and although it has not been directly answered in respect of the particular statutory language here (“outcome”) or on the particular facts here (pre-existing psychological disorder  triggered  by  injury),  the  surrounding  jurisprudence  in  respect  of ACC

causation  is  overwhelmingly against  the  proposition  that  a  pre-existing  disorder

24 These causation terms are used in the three Acts discussed in this judgment a surprising number of

times: “resulting from” 35 times, “because of” 56 times, “consequence of” 13 times, “caused by”
116 times, and “outcome” 9 times.

requiring an injury trigger is an “outcome” of that trigger.  There is therefore no real prospect of the question being answered in favour of the applicant in this case.

[44]     Returning to Fisher J’s summary in Kenyon, there is no reasonable prospect of success for the applicant here and no other extraordinary factor suggesting that the matter should now be argued.   It is not in the interests of justice for leave to be granted.

[45]     The application for special leave must be dismissed accordingly.

Williams J