Owen v Residual Health Management Unit [2000] NZCA 163; [2000] 3 NZLR 475; (2000) 14 PRNZ 389 (14 August 2000)

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Owen v Residual Health Management Unit [2000] NZCA 163 (14 August 2000); [2000] 3 NZLR 475; (2000) 14 PRNZ 389

Last Updated: 8 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/99

	BETWEEN	WILSON OWEN AND MITSUKO OWEN
		Appellants

	AND	RESIDUAL HEALTH MANAGEMENT UNIT
		First Respondent

	AND	DAVID ADDIS
		Second Respondent

	AND	JOHN C THOMSON
		Third Respondent

Hearing:	14 August 2000
Coram:	Blanchard J McGechan J Doogue J
Appearances:	K G Davenport for Appellant P A McCarthy for First Respondent A H Waalkens and C L Garvey for Second and Third Respondents
Judgment:	14 August 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] This is an appeal against a decision of Smellie J in the High Court to strike out a claim by the parents of a severely disabled child for compensatory and exemplary damages for what they have called nervous shock.

Background

[2] The appellants’ child was born on 14 April 1993. During the birth he suffered brain damage and is now seriously impaired. Almost six years later, on 9 April 1999, the appellants filed a claim against the respondents in the High Court. The appellants allege that the three respondents (the hospital where the child was born, and the doctors involved in the pre-natal care and birth of the child) failed to ensure that proper advice, services, knowledge and skill to enable a safe delivery of their child were available. They claim they suffered “nervous shock” as a result of the respondents’ negligence. They have not at any time sought leave under s4(7) of the Limitation Act 1950 for the bringing of the proceeding more than two years after the cause of action accrued.
[3] In a reserved judgment delivered on 12 October 1999, Smellie J struck out the appellants’ claim on the following grounds:

• [a] That because the appellants claimed only “nervous shock” and not “a recognisable psychiatric disorder or illness”, the pleadings disclosed no reasonable cause of action; and
• [b] That the claim was in any case barred by s4(7) of the Limitation Act 1950, because it was brought more than two years after the cause of action accrued.

[4] The appellants appeal both grounds.

The decision of the High Court

[5] Considering the first ground, that the pleadings disclosed no reasonable cause of action, Smellie J stated that the pleadings did not allege that the appellants had suffered a “recognisable psychiatric disorder or illness” as a result of the circumstances surrounding their son’s birth. In Van Soest v Residual Health Management Unit [2000] 1 NZLR 179, this Court held that an action claiming damages for psychiatric illness suffered as a result of witnessing bodily injury to another could succeed only if the illness was a “recognisable psychiatric disorder or illness”. Smellie J stated that, on his reading of this decision, “a mere pleading of ‘nervous shock’ is not sufficient to allege ‘a recognisable psychiatric disorder or illness’.” On the basis of affidavits filed, Smellie J could detect only grief, distress and anger, and considered that the father had retained all his faculties, and the mother was “mentally stable enough to take the child to Japan”. He was convinced that neither of the appellants could claim they had suffered any recognisable psychiatric disorder or illness. Consequently, the claim for compensatory damages was struck out, as there was no cause of action. The exemplary damages claim was also struck out, as it could not succeed on its own.
[6] The second ground was that the action was barred by s4(7) Limitation Act. Under this section “actions in respect of bodily injury of any person” must be brought within two years from the date on which the cause of action accrued. This two-year period may be extended to six years either with the consent of the intended defendant or with the leave of the Court. Neither was obtained in this case, and the six-year time limit has now passed. The question to be answered by Smellie J was whether the appellants’ claim was in respect of “bodily injury of any person” so that s4(7) applied. The term is not defined in the Limitation Act. But, given that Van Soest limited claims for nervous shock to recognisable psychiatric disorders or illnesses, Smellie J appears to have considered any nervous shock claim had to be founded on bodily injury. He held that the section applied and the claim was time-barred. He rejected the argument that the limitation point should be left until trial. The Court had no jurisdiction to hear the proceedings, as s4(7) states that the action “shall not be brought” without leave.

The appellants’ submissions

[7] The appellants argued firstly that if the term “nervous shock” was not the correct term to use then, on the basis of this Court’s comments in Van Soest, the proceedings should not be struck out, but the appellants should be given the opportunity to correct their pleadings to use the term “recognisable psychiatric disorder”. In Van Soest, this Court stated (at p182) that a claim is not to be struck out unless it is so clearly untenable that it could not possibly succeed even after amendment.
[8] The appellants argued secondly that “nervous shock” is in any event the correct term to use. It is the term used in Australian cases (such as Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549), English cases (such as Hinz v Berry [1970] 2 QB 40, 42 per Lord Denning) and by this Court in Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549.
[9] The appellants stressed that they are in fact claiming they suffer individually from recognisable psychiatric disorders. Smellie J did not ask the appellants or their counsel whether they claimed they suffered from a recognisable psychiatric illness, and there was in fact no discussion on this point at all. Therefore, there was no evidence which could have led Smellie J to conclude that the appellants did not suffer from a recognisable psychiatric illness.
[10] On the second ground, that of the meaning of “bodily injury” within s4(7) of the Limitation Act, the appellants argued that even though the injury to their son is a bodily injury within the meaning of s4(7), their claim is not “in respect of” this injury. This injury is a mere factual nexus in the claim. As was pointed out by Thomas J in Queenstown Lakes District Council v Palmer, the primary injury is simply part of the sequence of events which provides the factual basis for the claim of nervous shock. The claim of the appellants is for the injury they themselves have suffered, which is the nervous shock.
[11] The appellants also claim that the nervous shock they themselves have suffered is not a “bodily injury” within the meaning of s4(7). The question has never been examined by this Court in the context of that provision. Although there are some High Court cases indicating that s4(7) applies to cases of psychiatric disorders (e.g. Hodge v Residual Health Management Unit, HC Dunedin CP 39/99, 19 May 2000), these cases deal primarily with situations where there is also physical injury (e.g. sexual abuse, assault and battery). There are other cases, it was said, indicating that this is not an appropriate question to be considered on a strike out application (Armes v Davis, HC Wellington, CP90/95, 13 May 1996). The correct approach is to examine the true legal basis of a nervous shock claim. The Courts tend to distinguish, it was submitted, between mental injury arising out of a physical injury and nervous shock which need have no proximate relationship to any physical injury. Although in some cases, psychiatric disorders will result in an organic disease and some physical degeneration of the brain, nervous shock is a disorder of the mind that is in most cases not organic. It was submitted that solely psychiatric disorders of the mind cannot be injury to the “body”. Expanding upon the argument orally, Ms Davenport said that it would be anomalous if a psychiatric injury were suffered as a result of a tort like assault or false imprisonment which can be the subject of proceedings for up to six years after the cause of action accrues without leave, but yet leave would be required for a proceeding based directly upon the injury itself.
[12] Finally, the appellants submitted that even if their claim for damages for nervous shock can be characterised as a claim “in respect of a bodily injury”, this does not entitle the High Court to strike out their claim. Section 4(7) merely creates a defence which the Court can consider at trial – it does not create a “sword” allowing the Court to strike out the claim. It is only if the appellant seeks leave under s4(7) that the Court has a role to play in denying the plaintiff the right to bring the action. Here leave is not being sought.

The respondents’ submissions

[13] The respondents do not oppose the appellants’ appeal on the grounds relating to the adequacy of the proceedings. In addition, the third and fourth respondents concede that the issue of whether the appellants suffered a recognisable psychiatric illness is an issue of fact or law which should not have been determined at the interlocutory stage.
[14] On the second ground relating to the meaning of “bodily injury”, the respondents submit that the word “bodily” cannot be read as restricting the relevant injury to injury that is wholly or partly physical. They submit that this would create a senseless distinction and lead to injustices. Cases cited in the areas of tort law, criminal law and statutory accident compensation, to be referred to later, all consider psychiatric injuries to be bodily injuries. At any rate, say the respondents, recognising psychiatric injury as falling within “bodily injury” is consistent with the purpose of s4(7), because while a tortfeasor will generally know if he or she has caused a physical injury and that litigation may be forthcoming, a claim for nervous shock will be likely to come as a complete surprise. In addition, psychiatric illnesses, like physical injuries, can heal, making delayed litigation even more difficult to defend.
[15] Finally, the respondents pointed out that compliance with s4(7) is mandatory. If the proceeding is not brought within the time limit then the Court has no jurisdiction to hear it. The respondents submitted that because of the Limitation Act considerations, the litigation could not possibly succeed, so it is appropriate to strike out the proceeding.

“Nervous shock”

[16] In Van Soest, at p182, this Court made it clear that a claim should not be struck out if it could be reformulated in a way that would make it possible for the claim to succeed. In Van Soest the claim was struck out because the plaintiffs themselves expressly disclaimed any intention of relying upon any allegation of a psychiatric disorder or illness. Here, the appellants have not disclaimed any such intention – indeed, they claim to have used the words “nervous shock”, to mean precisely such a disorder or illness. The term “nervous shock” is commonly used, here and overseas, to refer to the type of psychiatric disorder or illness that would provide the basis for a claim of this kind: see Queenstown Lakes District Council v Palmer at p556; Hinz v Berry [1970] 2 QB 40, 42. The use of this term was sufficient to indicate that the appellants claim to have suffered a recognisable psychiatric disorder or illness. In Otter v Residual Health Management Unit (1999) 13 PRNZ 367 a plaintiff was allowed to resile from a concession that a pleading of “nervous shock” was not an allegation of psychiatric illness and was given by this Court the opportunity of re-pleading his claim on the basis that such an illness had been suffered.
[17] It is well established that in applications to strike out pleadings on the ground that no reasonable cause of action is disclosed, the Court is to assume that the facts pleaded are true (Attorney-General v Prince and Gardner [1998] 1 NZLR 262, 267). It was not open to the Judge to find as a matter of fact that the appellants could not have suffered from psychiatric disorder or illness, as that is a finding which could only be made at trial. On a striking out application, the Judge had to assume that the appellants could prove the recognisable psychiatric disorder they claimed to have suffered from.

Bodily injury?

[18] It is plain that, as the appellants submit, their claim is not for the injury to their child but is brought in respect of their own mental injuries. As such, they stand in the same position as the plaintiff in Queenstown Lakes v Palmer. Unlike him, however, they have not brought their claim within two years of the date on which the cause of action is said to have accrued. Consequently, in the absence of any application under s4(7), their claim is statute barred if it is one within that provision for “bodily injury”.
[19] The question can be re-stated as being whether an injury to the mind is a bodily injury. Although Ms Davenport was able to point to authority which spoke of bodily injury as something involving physical or physiological injury (Deeble v Nott (1941) 61 CLR 104), there is now a considerable body of case law which regards a recognisable psychiatric disorder or illness inflicted as a result of a sudden shock as a bodily injury or personal injury, terms which Williams J in Deeble v Nott (at p113) regarded as expressions used indiscriminately to mean the same thing. Ms Davenport herself accepted that “bodily injury”, “bodily harm” and “personal injury” have the same meaning in this context.
[20] Although most of the cases are relatively recent, it was held by the English Court of Appeal as long ago as 1910 in Yates v South Kirkby Collieries Limited [1910] 2 KB 538 that nervous shock causing incapacity to work is as much “personal injury by accident” as a broken limb or other physical injury. That was a case in which the plaintiff had been a rescuer in a colliery accident in which a fellow worker had been badly injured and later died. The nervous shock incapacitated the plaintiff from working at the coalface. Cozens-Hardy MR said that when a man in the course of his employment sustains a nervous shock producing physiological injury, not a mere emotional impulse, he meets with an accident arising out of or in the course of his employment (p541). Farwell LJ found difficulty in drawing any distinction between the case of a workman suffering from a known complaint arising from nervous shock and the case of a broken limb (p.542).
[21] In Australia in Boyle v The Nominal Defendant (1959) SR (NSW) 413 a Full Court unanimously decided that a claim for nervous and mental shock fell within the expression “bodily injury”.
[22] In this country the High Court determined under the Accident Compensation Act 1982 that a mental injury could constitute “personal injury by accident” (Cochrane v ACC [1993] NZHC 406; [1994] NZAR 6). Desiring to make a change in what was claimable, Parliament subsequently defined “personal injury” in the Accident Rehabilitation and Compensation Insurance Act 1992 as meaning “the death of, or physical injuries to, a person, and any mental injuries suffered by that person which is an outcome of those physical injuries to that person”. (s4)
[23] In the meantime the Supreme Court in Canada in R v McCraw (1991) 7 C.R.(4th) 314 had held that “serious bodily harm” should be interpreted as being any hurt or injury that interfered in a grave or substantial way with the physical integrity or well-being of the complainant and that the words were clearly broad enough to include psychological harm. However, that decision was certainly influenced by the definition of the words “bodily harm” as hurt or injury that interfered with the health or comfort of the complainant and that was more than merely transient or trifling in nature.
[24] We consider that the matter is put beyond doubt by two English decisions and two recent decisions of this Court. The first in time was R v Chan-Fook [1994] 2 All ER 552, a decision of the Court of Appeal, Criminal Division. In a judgment delivered on behalf of the Court by Hobhouse LJ it was held that the phrase “actual bodily harm” in the Offences against the Person Act 1861 was capable of including psychiatric injury but did not include mere emotions such as fear, distress, panic or a hysterical or nervous condition, nor did it include states of mind that were not themselves evidence of some identifiable clinical condition. The Court commented that the body of a victim includes all parts of the body, including organs, nervous system and brain. “Bodily injury therefore may include injury to any of those parts of his body responsible for his mental and other faculties”. The judgment contains a quotation from Lord Wilberforce in McLoughlin v O’Brien [1983] 1 AC 410, 418:

Whatever is unknown about the mind-body relationship (and the area of ignorance seems to expand with that of knowledge), it is now accepted by medical science that recognisable and severe physical damage to the human body and system may be caused by the impact, through the senses, of external events on the mind.

[25] In R v Mwai [1995] 3 NZLR 149, after referring to McCraw and Chan-Fook, this Court, speaking through Hardie Boys J, said that:

...one must acknowledge the artificiality of separating the mind from the physical body, and treating them as distinct entities. Mind and body are inseparable. Both go to make the whole being. Any part of the whole is susceptible to harm. For there to be “bodily harm” there must be a hurt or injury (other than of a transient or trifling kind): R v Donovan [1934] 2 KB 498, 509. A discernible intrusion upon or interference with the normal functioning of the physical or the mental process is required. It must be apparent, and identifiable as such. That is the only certain way of determining what is enough to constitute the offence and what is not. Therefore we would respectfully adopt the approach taken in R v Chan-Fook and, applying it to a charge under s188(2) [of the Crimes Act 1961], hold that grievous bodily harm includes really serious psychiatric injury identified as such by appropriate specialist evidence. (pp154-155)

[26] The next authority is from the House of Lords in R v Ireland [1997] UKHL 34; [1998] AC 147 which involved criminal offending where victims suffered psychiatric illnesses as a result of silent telephone calls being made to them, mostly at night. Their Lordships approved the approach taken in Chan-Fook, holding that “bodily harm” in the 1861 Act had to be interpreted so as to include recognisable psychiatric illness. They commented that neurotic illnesses affect the central nervous system of the body, because emotions such as fear and anxiety are brain functions. It had been recognised as long ago as Bourhill v Young [1942] UKHL 5; [1943] AC 92, 103 that an action would lie for injury by shock sustained through the medium of the eye or the ear without direct contact and that the distinction between mental shock and bodily injury was never a scientific one.
[27] Finally, we refer to R v Kneale [1998] 2 NZLR 169 in which, having reviewed most of these authorities, this Court concluded that it was artificial and out of tune with current thinking to limit bodily harm to physical harm since every person consisted of mind and body. This was in the context of whether it might constitute self-defence if the accused had used force in the genuine belief that it was necessary to protect a third party from mental harm.
[28] These authorities lead, we think, inevitably to the conclusion that the term “bodily injury” in s4(7) includes a recognisable psychiatric disorder or illness of the kind described in Van Soest. Nor do we see this as creating any anomaly of the kind mentioned by Ms Davenport. She was obliged to concede that, if there were no accident compensation legislation, an application would be necessary under s4(7) if it were desired to bring a claim for a physical injury after two years notwithstanding that it might be accompanied by another claim in tort of a kind falling outside s4(7), such as assault or false imprisonment.
[29] Accordingly, sympathetic though any Judge would be to the misfortune which has befallen the appellants, we are unable to regard their pleaded mental injuries as other than bodily injury. Thus an application under s4(7) was required as a prerequisite to bringing their proceeding.

Application for leave to amend

[30] Ms Davenport, who has not been instructed in this matter throughout, made an oral application for leave to amend the statement of claim to allege that it was not reasonably apparent to the appellants that they were suffering from psychiatric disorders until a date within six years of the present time. She said that, if this were permitted, an application under s4(7) would also be made. Counsel was, however, not in a position to support her application with any particulars from which it could be seen that a claim to have first reasonably discovered the injuries within the last six years could succeed. While this Court is sometimes willing to grant the indulgence of allowing an amendment to enable a claim to be placed on a different basis even at such a late stage, we do not consider that course to be appropriate in the present case in the entire absence of any verification of the additional matters now said to be intended to be pleaded. The position is to be contrasted with that in Otter where affidavit evidence was tendered.
[31] Ms Davenport referred us to an affidavit sworn by Mr Owen in a separate proceeding brought on behalf of the child and also by himself and his wife against the respondents. She suggested that, in so far as the appellants’ claims are concerned, there could be consolidation of the two sets of proceedings (thus avoiding the suggestion that they are in that respect an abuse of process). But we have been unable to find in that affidavit, or even in the pleadings themselves in the other proceeding, any suggestion that Mr Owen’s recognition of the alleged mental disorder occurred sufficiently long after the birth of the child as to have postponed the running of time in the appellants’ claim to save it from now being outside the six years. In these circumstances it would not be proper to grant the application.

Consequence of non-compliance with s4(7)

[32] As it is now too late to bring an application under s4(7) for an extension, six years having long since expired, the appellants’ claim is plainly statute barred. We agree with the conclusion of Tipping J in A v D (1996) 10 PRNZ 68 that the proviso in s4(7) does not authorise an application for leave outside the six year period merely because a substantive proceeding may have been filed, without leave, during that period.
[33] Smellie J was therefore correct in concluding that the proceeding must be struck out. It is bound to fail because of the limitation defence, which has been pleaded.
[34] The appeal is dismissed with costs of $2,500 to the Residual Health Management Unit and the same amount to the other respondents jointly. Each of the respondents is also to have their reasonable disbursements, including travel and accommodation costs of one counsel.

Solicitors
Gerard Winter Associates, Whangarei for Appellants
Crown Law Office for First Respondent
Keegan Alexander Tedcastle & Friedlander, Auckland for Second and Third Respondents