Tort of Negligence Essay

MEMORANDUM

SUBJECT: Andrew, personal injury, mental injury, accident compensation, common law action
FACTS: A is a cleaner employed by the University of Ewewhon. He nicks a finger on a broken test tube on the floor of a laboratory. A small spot of blood forms. He is assured the test tube was clean. A becomes extremely fearful that the glass might have been contaminated and that he might contract a serious illness.

1.0 ISSUE: Application of the Accident Compensation Act 2001
Assuming A is a New Zealand citizen, A’s personal and mental injuries may be covered under this Act. We are not told whether A’s injury occurred within New Zealand, but the Act does have extraterritorial application. If A can recover under the Act for mental injury then s317 will be employed and he will be prevented from pursuing common law action.

1.1 ISSUE: Section 26 Personal Injury
Accident Compensation Act s26: (1) Personal injury means – ... (b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (c) mental injury suffered by a person because of physical injuries suffered by the person...
Andrew may be covered for personal injury under s26(1)(b) and s26(1)(c). What then is the meaning of physical injury? Section 26(1)(b) includes a “strain or sprain” but otherwise “physical injury” is not defined any further. In Falwasser v Attorney-General, the High Court judge accepted a natural meaning of the words, involving hurt or harm that affects the body rather than the mind or any incorporeal aspects of human existence. In The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009), Professor Todd suggested that physical injuries “should be understood to mean any condition involving harm to the human body...that is more than merely trifling or fleeting”.
The claimant suffered a physical injury which involved the nicking of a finger. There is no dispute that there was harm was done to the human body, but was the harm done more than merely trifling or fleeting? There was a penetration of the skin, causing a small spot of blood to form. It is unknown how long the bleeding lasted. A small spot of blood however suggests that the bleeding was only short and did not continue for a modest period of time. Prima facie this physical injury suffered appears to nothing more than merely trifling or fleeting. However in the case of Reekie v Attorney-General the courts found that there was a personal injury where an arrested person had his finger pricked for the purpose of taking a blood sample. This is a very similar injury suffered by A. Reekie is consistent with the overall purpose of the scheme which is to provide comprehensive, no-fault insurance cover for personal injury. This combined with the need for more information, I advise that A he likely to be covered for personal injury under s26(1)(b).
S26(1)(c) provides that once physical injury is established then any consequential mental injury is covered as well. Assume that A has established physical injury. The question is then has A suffered a mental injury?
S27 defines “mental injury” to mean “a clinically significant behavioural, cognitive or psychological dysfunction”. The facts tell us that A is “extremely fearful” about the prospect of contracting a debilitating or fatal illness. Extreme fearfulness does not warrant the definition in s27 and it appears A fails to come within the definition of “personal injury” provided for in s26(1)(c). I advise he is unlikely to succeed under s26(1)(c).

1.2 ISSUE: S21B Cover for work-related mental injury
S21B is another possible remedy for A. S21B provides cover for work related mental injury. A person is covered if their mental injury is caused by “a single event that the person experiences, sees, or hears directly in the circumstances described in s28(1)”, and is “a single event that could reasonably be expected to cause mental injury to people generally”. There is no dispute of A experiencing the event and the suddenness by which it occurred. However dispute exists as to whether the event could be reasonably expected to cause mental injury to people generally. Even if this was satisfied, A would still be unable to prove mental injury that is defined in s27 of the Act. Therefore I advise A that he is unlikely to be covered under s21B.
CONCLUSION:
A’s physical injury is likely to be covered by the Act. However A’s mental injury is most unlikely to be covered for in either s26(1)(c) and s21B. A is free to pursue a course of common law action against the University for mental injury.

2.0 ISSUE: Is A’s mental injury foreseeable?
A core requirement for a duty of care is that mental injury should be foreseeable. If we apply Page v Smith, A is a primary victim and would only require foreseeability of personal injury, whether physical or mental. The New Zealand courts have not attempted to classify victims into a primary/secondary distinction, and so the principle in Page is most unlikely to be adopted.
Tame v New South Wales found that if a plaintiff has an “egg-shell personality” then his or her mental injury in unlikely to be foreseeable. In the case of A, he has been assured that the test tube was clean yet he becomes extremely fearful about contracting an illness. This suggests that A may have an “egg-shell personality” and it is not reasonably foreseeable by the University that A would develop an injury from the pricking of a test tube which he was assured was clean.

2.1 ISSUE: Actionable Mental Injury
For any claim for mental injury standing alone, it must be actionable damage, either a physical consequence of the shock or must be proven to be a medically identifiable psychiatric condition or illness as a result of that shock. If you have suffered physical injury then mere upset, grief or distress are compensable.
Physical injury which can be dismissed as minimal is not actionable. A’s physical injury is similar to the one of the plaintiff in Fryers v Belfast Health & Social Trust. Fryers involved a pricking injury from a non-sterile needle. In the Court of Appeal in Northern Ireland, it was held that the plaintiff did sustain a physical injury that was not so trivial that it failed to qualify as compensable. Girvan J emphasised that the injury was: “... not a mere needlestick injury... The plaintiff was injured by a non-sterile needle in a bag of other items for disposal... it may well have been contaminated by blood-borne organism liable to cause serious infection...The wound itself bled for a short period of time.”

The court accepted that a person accidentally pricked by a sterile needle causing no pain or suffering apart from the transient sensation of the pricking would not have a claim.A is assured by the person who dropped the test tube that it was clean. The broken test tube was on the floor before it was picked up by A and though it is not disclosed in the facts, one can reasonably expect that the test tube was isolated and not coupled in a bag with other “chemical waste” unlike Fryers. Prima facie A’s injury appears to be trivial. Also note the discussion of physical injury in 1.1. Reekie would favours A’s injury to be compensable. However further facts are needed, such as the duration of the bleeding of the wound and the pain threshold in order to determine whether injury was more than trivial to qualify as compensable.
A may also claim for mental injury standing alone, but is to be advised that his claim will most likely fail. This is because he does not have an actual psychiatric illness or condition. Van Soest v Residual HM Unit accepted a recognisable psychiatric illness as being the law in New Zealand. In Rothwell v Chemical & Insulating Co (UK) plaintiffs argued risk of future damage could be damage itself but the House of Lords stuck out the claim. Their Lordships held claims involving victims who suffered only fear and anxiety had to fail, for there is no actionable damage: “an injury which is without symptoms at all because it cannot be seen or felt and which will not lead to some other vent that is harmful has no consequences that will attract an award of damages.” Similarly A’s risk of future damage is not actionable applying Rothwell.

CONCLUSION:
A can be advised that while it is most unlikely a claim for mental injury standing alone would succeed, he may be able to recover for damages on the basis of mental injury consequent on a physical injury. If A is able to prove physical injury is compensable, then University is likely to owe A a duty of care.

1500 words

Bibliography

Cases
New Zealand
Falwasser v Attorney General [2010] NZAR 445
Reekie v Attorney-General [2009] NZAR 304 van Soest v Residual Health Management Unit [2000] 3 NZLR 475

Australia
Tame v New South Wales: Annetts v Australian Stations Pty Ltd (2000) 211 CLR 317

UK
Fryers v Belfast Health & Social Care Trust [2009] NICA 57
King v Phillips [1953] 1 QB 429
Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39

Statutes
New Zealand
Accident Compensation Act 2001

Books
T Stephens The Law of Torts in New Zealand (5th ed, Brookers Ltd, Wellington, 2009)

Journal Articles
Todd Stephens, “Mental Consequences of Physical Injury” <2012> NZ L Rev 376

Other sources
<www.acc.co.nz>

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[ 1 ]. Accident Compensation Act 2001, s 21B(2)(a)
[ 2 ]. Accident Compensation Act 2001, s 21B(2)(b)
[ 3 ]. King v Phillips [1953] 1 QB 429
[ 4 ]. Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39
[ 5 ]. Todd Stephens, “Mental Consequences of Physical Injury” NZ LRev 376

Bibliography: Tame v New South Wales: Annetts v Australian Stations Pty Ltd (2000) 211 CLR 317 UK Books T Stephens The Law of Torts in New Zealand (5th ed, Brookers Ltd, Wellington, 2009)