Abstract:
Mental injuries that are “because of” physical injuries are amenable to cover under the Accident Compensation scheme. However, such is the complex nature of human physicality, often in an accident where there are multiple possible causes of mental injury it is difficult to separate those which are consequential on physical injuries and thus coverable, and those that are not.
When separating out coverable injuries and non-coverable injuries this author has argued that the courts adopt an approach that is informed by pragmatism. Where mental injury can be divided between separate causes feasibly, the courts will allow for apportionment to occur. Where the lines of causation are more blurred and accurate separation cannot occur, the courts are open to generalising and aiming for the most workable solution, whether that is inside the statutory scheme or through a common law claim.
The courts take a pragmatic approach dealing with matters of fact when issues of separating coverable injuries from non-coverable injuries arise. They rely on expert advice, but retain determinative power over deciding causation. Additionally, they recognise certain generalised fact patterns as increasing the likelihood of a direct link between coverable injuries and mental injuries being present and, thus, extending cover to mental injuries.
The courts also take a pragmatic approach to applying the law when separating coverable injuries from non-coverable injuries. If separation is artificial, the courts may allow statutory cover even though consequential causation cannot be unequivocally proven. Similarly, the courts can deny actions that may be right in principle on the grounds that accurately vindicating them would be unworkable. Importantly, the pragmatic approach entails that the courts will not feel compelled to separate out injuries in every circumstance.
Retaining the pragmatic approach will ensure that coverage for mental injury continues to fit within the overall rubric of ‘comprehensive entitlement’, and that the policy of minimising the overall effects of injuries on the community if fulfilled, by making feasible allowances for the true complexity of searching for legal solutions to medical problems.
