IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2011-485-000117

UNDER

s 162 of the Accident Compensation Act 2001

IN THE MATTER OF

an appeal against a decision of the District Court at Wellington

BETWEEN

JILLIAN COMERFORD-PARKER Appellant ACCIDENT COMPENSATION CORPORATION Respondent

AND

Hearing: Counsel:

11 May 2011 J P Miller for Appellant A D Barnett for Respondent 26 May 2011

Judgment:

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 26th day of May 2011.

RESERVED JUDGMENT OF GENDALL J

[1]

In a decision of the District Court at Wellington, Judge M J Beattie dismissed

the appeal of Ms Comerford-Parker against the Accident Compensation Corporation (the Corporation) decision declining to grant her cover for mental injury, namely a Post Traumatic Stress Disorder (PTSD). This appeal is against that decision. It is brought with leave of the District Court on a point of law under s 162 of the Accident Compensation Act 2001.

COMERFORD-PARKER V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2011-485-000117 26 May 2011

[2]

Leave to appeal was granted by Judge P F Barber, in which he accepted the

argument that a question of law capable of bona fide and serious argument, arose. He said that question of law was:
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.

[3]

Section 4 provides:
(1) For the purposes of this Act, personal injury means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, ...

[4]

In granting leave Judge Barber said:1

It may be a question of fact whether a sequence of events occurring over a short period of time is so inextricably bound as to be viewed as a single cause of a mental injury and a physical injury; or, whether the frightening event and the physical accident can be separated out so as to identify the frightening event as the cause of the mental injury and the physical injury as not a cause. However, that issue seems to raise a mixed question of fact and law and involves interpreting the word outcome in the said definition of personal injury.

Background [5] The essential facts of the events giving rise to the claim are referred to in the

judgment of Judge Beattie and are not in dispute. Ms Comerford-Parker was a proprietor of a small craft shop on State Highway 1 in Northland and lived in premises adjacent to it. In the early hours of the morning of 28 May 1998 she was awoken by the shops alarm being activated. She went to the shop and observed, from the outside, a male burglar inside, who pointed a pistol at her. She panicked and ran away and in doing so slipped and injured her knees. She was able to return to her dwelling and telephone the police who arrived and located the intruder inside. She later lodged an accident compensation claim for a soft tissue injury to the left knee, and later a further claim for a similar injury to the right knee was made. She has continued to experience pain in her knees.

Comerford-Parker v Accident Compensation Corporation [2011] NZACC 5 at [19].

[6]

Much later, in March 2000, a general practitioner diagnosed that she was

depressed and referred her to a psychiatrist. Judge Beatties recitation of the facts continued:2
Dr Perkins, the psychiatrist to whom she was referred, reported that the appellant had been subject to multiple stressors over a number of years. The burglary incident was not mentioned. Between May 2000 and December 2004 the appellant attended regular sessions with a counsellor ... and in a report to her GP in August 2002, [the counsellor] mentioned that one of the several traumatic situations the appellant had experienced was the occasion of the burglary. In January 2003, the appellants then GP, Dr Baddock, completed a report in which she noted, inter alia, that the appellant was suffering from PTSD [Post Traumatic Stress Disorder], complicated by anxiety and depression since the burglary. On 6 March 2003, the appellant lodged a claim with ACC through Dr Baddock for cover for her PTSD, said to have arisen out of the May 1998 incident. By decision dated 28 March 2003, which is the decision now under appeal, the respondent declined the appellants claims stating that there was inconclusive evidence to support a claim that the nature of her injury had directly contributed to her PTSD. The appellant sought a review of that decision and after a false start a review hearing took place in January 2006, at which the appellant was represented by counsel. In her decision dated 13 February 2006, the Reviewer, ... gave as her decision as follows: The mental injury must arise from the physical injury. I find that the mental injury has arisen from the shock of being confronted by the burglar. The mental injury had therefore arisen before she sustained the physical injury. I find that the mental injury was not caused by the injury to the claimants knees.

[7]

In his judgment Judge Beattie correctly said that the appellant had to

establish on the balance of probability, that her PTSD was an outcome of her physical injury, namely the injuries to her knees. His Honour reviewed the medial and psychiatric opinion, and earlier District Court decisions of Greenland-Tangipo v

Comerford-Parker v Accident Compensation Corporation DC Wellington 99/2008, 2 May 2008 at [5].

Accident Compensation Corporation3 and Woodd v Accident Compensation Corporation.4 He observed that in this case there was no assault or physical injury arising from the burglar and the injuries were extraneous to his actions, which had created the traumatic event. Judge Beattie expressed the view that the physical injury to the knees was not of itself a traumatic event which would give rise to PTSD, and that it was the shock and panic of the appellant endeavouring to depart from the threatening situation in which she injured herself. The Judge agreed with counsel for the Corporation that the word outcome in s 4:5
must mean that the mental injury has resulted from the physical injury suffered. I find there must be a definite causal link, that is a direct cause and effect connection between the mental injury and the physical injury. The physical injury must be the source of the mental injury which subsequently arises.

Counsels submissions [8] On behalf of the appellant Mr Miller submitted that interpretation of the

legislation must be generous and not niggardly, and to compartmentalise the life threatening situation giving rise to an initial shock, but distinct from a physical injury which followed, was wrong. He relies upon the decision of Judge Cadenhead in Woodd where the Judge said it was artificial to sever the physical injuries from the matrix of fact making up the assault,6 because it was the physical injuries, along with the shock, which were a combination of substantial factors which consequently gave rise to the PTSD in that case. There the claimant, the victim of a burglary, was forcibly held, threatened with a gun at her head, and had her hands and feet tied leading to bruising to the neck and shoulder pain. These were the physical injuries which the Judge said, on the facts, comprised a different type of assault, from the infliction of violence unaccompanied by any physical injury to the person. There the appellant had discharged the burden of proof of showing on the balance of probabilities that there was a causal relationship between the physical injuries she suffered and the mental injury.

4 5 6

Greenland-Tangipo v Accident Compensation Corporation DC Wellington 28/2003, 6 March 2003. Woodd v Accident Compensation Corporation DC Wellington 54/2003, 2 April 2003. At [39]. At [34].

[9]

Mr Miller submitted that the traumatic experience of the appellant continued

with her running away and the physical injury occurred while she was still within the zone of peril. Accordingly, he said the PTSD was an outcome of physical injury even if it occurred shortly after the precipitating frightening events. Counsel referred to the decision of the Court of Appeal in Hornby v Accident Compensation Corporation where the Court of Appeal said three possible situations might arise namely, mental injury arising out of an accident and the result in physical injuries; the aggravation of a pre-existing mental condition solely because of physical injuries; and physical injuries being a contributing cause, although not the only contributing factor, leading to the resurgence of a prior mental affliction. 7 Relying on that analysis, Mr Miller submitted that it was open for the Court to conclude that cover exists for the creation of a mental condition arising out of shock and trauma of the precipitating event (the confrontation with the burglar), where there is aggravation of it by perpetuating events (knee pain) through rekindling memory or recollection of the frightening event. [10] On behalf of the Corporation, Mr Barnett contended that it was always a

factual exercise in determining whether a mental injury arose because of a physical injury. He submitted that the psychiatric evidence was clear. By definition, PTSD requires a life threatening event and does not arise out of any physical injury unless that injury itself was life threatening so as to form the basis of, or at the very least a substantial part of, a life threatening traumatic distress. He referred to the evidence before Judge Beattie that the knee injury of the appellant could not be considered as life threatening, or potentially so. [11] Mr Barnett contended that although under the 1982 legislation a claimant

could be entitled to accident compensation cover through nervous or traumatic shock without there being physical injury (provided it was a consequence of an accident). Section 4 of the 1992 Act altered the position to make it clear for cover to exist there must be physical injury and that cover exists for mental injury only where it is the outcome of that physical injury not just any physical injury.8

7 8

Hornby v Accident Compensation Authority [2009] NZCA 576. See Accident Compensation Corporation v E [1992] 2 NZLR 426 (CA).

Discussion Mental injury [12] Mental injury is defined, for the purposes of the Act, in s 27:
Mental injury means a clinically significant behavioural, cognitive, or psychological dysfunction.

[13]

Psychiatrists generally categorise mental illnesses because of signs and

symptoms which occur in groups or syndromes, so that mental illnesses have symptom based definitions. Mental injury or illness may arise from organic

(physical) causes, which may include physical injury, or functional (psychological) causes. The wide range of mental illnesses or dysfunctions includes anxiety states, depression, phobia, eating disorders, manic depression, schizophrenia, paranoia, dementia, psychotic states, to name a few. [14] Post Traumatic Stress Disorder was a term introduced into psychiatry after

the Vietnam War. It comprises a cluster of symptoms and a disorder that can:9
develop in people exposed to severe trauma, such as major physical injury, participation in warfare, assault or rape, or any event in which there is major loss of life or threat of loss of life. Most people exposed to trauma do not develop psychiatric disorders; however, some develop immediate distress and occasionally, their reaction can be delayed for many months.

[15]

But a physical injury would not appear to be causative of PTSD unless it

constitutes severe trauma or is accompanied by a life threatening event. That is apparent from the fact that PTSD can manifest itself some time after the life threatening precipitating event, so the outcome later occurs. It follows upon, and is a consequence of the life threatening event or the exposure to severe trauma. It may develop over time and symptoms delayed for months. But PTSD is only recognised where the causative event reaches that traumatic threshold. [16] Circumstances in which mental injury or dysfunction arise will be infinite.

Children and others who suffer abusive behaviour whilst in institutions or in welfare care, but have no physical injuries, bring common law actions regularly seeking
9

Blacks Medical Dictionary (42nd ed, A & C Black, London, 2010) at 530.

damages for such mental injury because it is not the subject of cover by ACC. So too, a person in an abusive domestic relationship may over a number of years be assaulted so as to give rise to physical injuries at the time, and a later development of PTSD. In those circumstances ACC cover may exist. If the abuse or wrongful treatment is psychological only and no physical injury results, but nevertheless the mental condition arises (through constant anxiety and fear and life threatening situations), the wronged person may bring a common law action because cover did not exist, or the condition is not the outcome of physical injuries. Those are some examples of different situations which may arise. [17] The issue is one of proper interpretation of the statute and what the meaning

of outcome is in the context that it appears. Under the 1982 Act cover existed from mental consequences arising from any accident. The 1992 Act altered this no doubt as a result of the decision in Accident Compensation Corporation v E to make it clear that there had to be a causal connection between the physical and mental injuries, namely that the latter was an outcome or one outcome arising from the physical injuries. [18] In Harrild v Director of Proceedings in a judgment of Glazebrook J given on

behalf of herself and Blanchard J, she said: 10

In terms of scheme and purpose, the accident compensation legislation does not cover mental injury unless arising out of physical injury. This exclusion first appeared in the 1992 Act and has been carried forward to the 1998 and 2001 Acts. The exclusion reversed the interpretation that the Courts had given, under the earlier legislation, to the term personal injury to include mental consequences of an accident even if unaccompanied by physical injury see Accident Compensation Corporation v E [1992] 2 NZLR 426.

[19]

Elias CJ deliberately uses the words that compensation for personal injury

arises in situations including mental injury which results from physical injury ... .11 [20] In the High Court, in Hornby v Accident Compensation Corporation,

Dobson J was concerned with the definition of personal injury, for the purposes of

10 11

Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) at [71]. At [19].

cover, under the 2001 Act.12 There, s 26(1) defined personal injury to include mental injury suffered by a person because of physical injuries suffered by the person. His Honour said that a direct causal link was necessary. It was implicit in his judgment that there was no material difference between an outcome of as now required in the 1992 Act, and because of under the 2001 Act. The appropriate test was to ask whether the mental injury resulted from the physical injury. He

concluded that a finding of indirect causation was not sufficient to satisfy the test, namely whether the mental injury was suffered because of physical injuries. [21] 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. [22] A direct causal link leaves open the possibility that there may be multiple If one of these is a significant and substantial

causes of the mental injury.

contributing cause then it can, not only as a matter of fact but as a matter of law, be said to give rise to the subsequent mental injury. But there will be cases where it is difficult if not impossible to separate mental and physical consequences of an event or injury. Examples can be seen in strike out cases involving a common law action in negligence to recover compensatory damages for mental injuries, such as Sivasubramaniam v Yarrall13 where there were issues of dual causes, and Robertson v Attorney General14 a closed head injury sustained by the plaintiff accompanied the development of a PTSD arising from the frontal lobe dysfunction (physical injury) caused in the accident, and the Corporation gave cover to the plaintiff for an extended period for this psychological condition. As observed in that decision the claim by the plaintiff was obviously some of it related directly to the psychological effects or consequences of the closed head injury. Accordingly, ACC cover was available and the statutory bar applied.15

12

13 14 15

Hornby v Accident Compensation Authority HC Wellington CIV 2008-485-763, 10 September 2008. Sivasubramaniam v Yarrall HC Wellington CIV 2004-485-464, 21 December 2004. Robertson v Attorney General HC Palmerston North CP 16/01, 12 August 2002. At [41].

[23]

A person may be captured and held hostage, tied and bound and assaulted

during the ordeal, from which he later escapes. He is left with a nervous shock condition arising out of the entire events. In those circumstances it could not be said that one of the causes of the mental state that later arose was not physical injuries sustained in the hostage taking event. That is the sort of situation, it seems, that Judge Cadenhead was dealing with in Woodd where the victim of a pharmacy burglary was forcibly held, pushed to the ground, a gun held to her head and her hands and feet tied and had cover for those physical injuries and the case was decided on the facts with physical injuries being inflicted:16
... this type of assault accompanied as it was by violence and physical injury to the appellant, was a different type of assault than that of a mere assault unaccompanied by any physical injury to the appellant. On the facts of this case, it is artificial to sever the physical injuries from the matrix of fact making up the assault, as indeed the physical injuries, along with the shock, were undoubtedly in combination substantial factors that consequently gave rise to the post-traumatic stress disorder.

[24]

Issues of causation or consequences, involve both matters of law and fact. It

will be an issue of law whether particular acts are capable of being causative of other acts, or if the later condition results from what is said to be a cause and is sufficiently proximate. But it will be a question of fact whether the essential connection is established so that the mental harm results from the injury. [25] Whether perpetuating causes are outcomes from a physical injury so as to

lead to mental injury, may well depend upon the type of mental injury, and type of physical injury under consideration. For example, causes of depression may be continuing perpetuating occurrences. But PTSD is, by definition, caused by the life threatening event and once it exists, later symptoms will be effects which result from it. That is the condition. But Mr Millers argument appears to be based on the proposition that the effects of injury (pain, and prompting of memory) lead to the resulting mental injury. This may fail to distinguish between results of an injury and effects of it.17 The physical effects of the physical injury result from it. But conversely the mental injury, already present, does not result from those physical effects. Results are not necessarily the same as effects. There will be a causal
16 17

At [34]. See H L A Hart & Honor Causation & The Law (2nd ed, Clarendon Press, Oxford, 2002) at 360.

connection between the physical injury and the alleged outcome (the PTSD) if as a matter of fact, medical and other evidence, there is a resulting, consequential logical connection between the PTSD and the physical injury. [26] It is necessary to briefly refer to the evidence before Judge Beattie and the

Corporation: A 28 March 2000 opinion of Dr Perkins diagnosed depressive symptoms arising out of a number of possible personality and other factors, but no reference to initial physical injury in the form of damage to knees. A 23 August 2002 opinion of a counsellor, who counselled the appellant after traumatic situations were experienced, one being the robbery, which had contributed to her depression, fears and phobias, plus other health problems. The same counsellor, later on 7 March 2003 in a letter to the ACC Review Officer, expressed the view that she had been made aware of the knee injuries during the counselling process and:
... these are a contributing stress factor to Jills well being, and that counselling is helping Jill to deal with the Post Traumatic Stress due to these injuries.

The counsellor continued to express that view but a specialist psychiatrist, Dr McCormick, said that the traumatic stress disorder arose through confrontation with the assailant and not through any physical injuries which she sustained and the mental connection whilst directly linked to the 1998 event:18
The condition has been caused by mental and not physical injury.

18

Comerford-Parker v Accident Compensation Corporation DC Wellington 99/2008, 2 May 2008 at [9].

Dr McCormick went on to describe other factors that he believed to be also in play relating to personality and historical circumstances which affected Ms Comerford-Parker. A further opinion from a neuropsychiatrist, Dr Newburn, was obtained by counsel for the appellant, and assessed her as having:19
a well established post traumatic stress disorder, described clearly by Dr McCormick, psychiatrist, and confirmed by the writer. Additionally, she continues to show features of a major depressive episode. ... It is equally clear that [the] post traumatic stress disorder arose out of events described, relating to a robbery of a shop in front of her house in Ruakaka in 1998. It is also clear that at the time of this event, she sustained an injury to her knees. ... The issue arises as to whether post traumatic stress disorder arises from the events in which the injury occurred, rather than from the injury itself.

[27]

Dr Newburn expresses the view that the knees continued to act as reminders

of the events of 28 May 1998 and the memory process:20

... will act not only at the level of a cognitive or psychological function, but must also act at a physiological level. Thus, there is a constant and recurrent physiological process arising from the robbery that continues to influence her mental function.

[28]

Dr Newburn speaks of possible physical injury to the brain and PTSD being

caused by a physical process which is a direct consequence of the traumatic event. He therefore concluded that:
The presence of symptoms of post traumatic stress disorder imply a physical injury to the brain at the time. ... Her ongoing symptoms in her knees continue also to act as constant physical reminders of the event, and will also, based on probability, continue to influence physical brain processes. ...
19 20

At [10]. At [10].

Thus, it can be seen from the above that there is an inevitable link between the more obvious physical injuries pertaining to [the] knee, and the less obvious physical injuries relating to those brain processes associated with post traumatic stress disorder. Because of links in brain processing, at a physical level, it remains artificial to separate these issues.

[29]

That opinion is not shared by Dr McCormick, the specialist psychiatrist, in

which he said:21
I consider that the trauma which lead[s] to Ms Comerford-Parkers PTSD was her confrontation with her assailant. DSM 4 criteria for PTSD include a prerequisite that a person suffered a trauma which was potentially life threatening. In Comerford-Parkers case this was the confrontation by her assailant. Certainly, Ms Comerford-Parker subsequently injured her knees but knee injury, even with ongoing effusions, is not a potentially life threatening circumstance. If Ms Comerford-Parker had not hurt her knees on the night of her confrontation with the burglar, I suggest she still would have developed PTSD.

He is clear in his opinion that the PTSD was not caused by physical injury to the knee. [30] A further psychiatrist, Dr Finucane, was asked by solicitors for the appellant

to provide a report in respect of causation of the diagnosed PTSD. He concluded:

PTSD is by definition caused by psychological trauma rather than physical trauma. Hence the answer to your question [was the knee injury causative of the PTSD?] is no. ... It is not clear that the knee injury is part of the same matrix of fact as the brandishing of the gun, since it occurred a short time afterwards rather than simultaneously, but one question here is whether it is the matrix of fact as such at the time of the mental injury resulting in PTSD that is relevant or the mental conflation of one set of facts with another in the mind of the victim which determines whether or not PTSD can be linked to physical trauma and pain. My current opinion is that in the present case the horror of being confronted with a gun was necessary and sufficient for the development of PTSD in a vulnerable individual and that the fall and knee injury served to maintain the salience of this for some minutes rather than being part of the actual cause of the mental state which resulted in the Post Traumatic Stress Disorder.

[31]

Dr Newburn responded to this, essentially contending that:

Pain acts as a reminder, and as such is an ongoing psychological stressor, reminding Ms Comerford-Parker of the injuring event, and in particular the inability to escape and thus threat to personal safety and integrity.

21

At [11].

[32]

The development of the mental condition need not be contemporaneous with

physical injury. But it must result from it. In terms of s 4(1) there must be physical injury which is a cause (although not necessarily be the only cause) of the mental injury that later arises. In the present case Judge Beattie had before him the evidence of Dr McCormick and Dr Finucane essentially that the injuries to the knees were irrelevant in the causation of PTSD, even though themselves from time to time being a reminder or jogging of the memory of the traumatic event. Judge Beattie found as a fact that the peril was that which had arisen by the appellants confrontation with the burglar and that the weight of the evidence was clear that psychological peril was a traumatic event which resulted in the outcome of PTSD and that the causal link, between the physical injury and the mental injury did not exist. [33] Dr Newburns opinion that PTSD symptoms imply a physical injury to the

brain seems to refer to a different physically occurring process from that offered by the appellant as being that from which she says PTSD results, although the witness does speak of an inevitable link with the knee injuries. But this is, he said, a constant physical reminder. I consider that to be the effect of the knee injury but this does not result in the existing mental injury. Put in another way, the

remembering process experienced by Ms Comerford-Parker may be a symptom of her PTSD, but not an ongoing cause. [34] I agree that results from as used in Harrild v Director of Proceedings22 is

the proper means of establishing the necessary degree of connection between the physical injury and the subsequent mental injury. In this case, the mental injury, the PTSD, does not result from the physical injury in the sense of any injury to the knees. It results from (apart from other predisposing factors) the psychological trauma which confronted the appellant. And Judge Beattie had a wealth of evidence available to enable him to reach the factual conclusions he did. [35] I do not consider that the question of law posed by Judge Barber, namely that

the word outcome in s 4 may cover not only a precipitating cause of mental injury but also a perpetuating cause is capable of one answer. It will all depend on the nature of the mental injury and what is said to be the perpetuating cause. It
22

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

will be a question of fact in every case whether the ultimate condition (the mental injury) is in fact an outcome or result of physical injury, and whether the perpetuating cause is but an effect of the physical injury, rather than something that results in a mental injury. And the issue of law as posed begs the question and the way it is framed because if something is a cause (perpetuating or otherwise) it will by definition result in, or produce the outcome of, the mental injury. Yet here, as a question of fact that had already existed that is, been caused. [36] As has been repeatedly said, this Court has to resist attempts to dress up

factual findings as if a question of law. In the present case Judge Beattie found on the facts that the mental injury was not so caused by the later symptoms or effects relating to the knee injury. Both he and the Corporation were entitled to reach that view on the evidence. [37] The appeal is dismissed.

___________________________ J W Gendall J
Solicitors: John Miller Law, Wellington for Appellant