MacKenzie v Attorney-General
[2015] NZHC 191
•17 February 2015
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2012-470-977 [2015] NZHC 191
UNDER the Human Tissue Act 1964, the Coroners
Act 2006
BETWEEN
JOHN MORGAN MACKENZIE Plaintiff
AND
THE ATTORNEY-GENERAL (sued in respect of the Crown Health Financing Agency)
Defendant
Hearing: 18 March 2014 Appearances:
Plaintiff in person
T Bromwich for DefendantJudgment:
17 February 2015
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 17 February 2015 at 4:30pm
pursuant to Rule 11.5 of the High Court Rules.
...................................
Registrar/Deputy Registrar
Solicitors:
Crown Law (T Bromwich), Wellington, for Defendant
Copy for:
Mr J M Mackenzie (Plaintiff)
MACKENZIE v THE ATTORNEY-GENERAL (sued in respect of the Crown Health Financing Agency) [2015] NZHC 191 [17 February 2015]
TABLE OF CONTENTS
Paragraph
Mr Mackenzie’s claim [4]
Has Mr Mackenzie sued the right defendant? [8]
Does Mr Mackenzie have a cause of action? [19] Does Mr Mackenzie have a defamation claim? [23] Does Mr Mackenzie have a cause of action for the
removal of the aortic valve without consent? [25] A common law question [28] Coroners Act 1951 [29] Human Tissue Act 1964 [32] The interest claimed by Mr Mackenzie [37] Other jurisdictions [59] United States [60] Canada [62] Scotland [63] England [66] In Re Organ Retention Group Litigation [68]
Is Mr Mackenzie’s cause of action statute-barred? [78] Limitation for removal of aortic valve [81] Limitation for defamation claim [92]
Outcome [93]
[1] In this organ-harvesting case, Mr Mackenzie sues over the removal of the heart from the body of his deceased son after consent had been refused. The defendant applies to strike out. That requires me to decide these questions:
(a) Has Mr Mackenzie sued the right defendant? (b) Does he have a cause of action?
(c) Is his claim statute-barred?
[2] In summary, the Crown Health Financing Agency, whom Mr Mackenzie originally sued, no longer exists. The Attorney-General is substituted as the defendant. Although Mr Mackenzie has an arguable cause of action, his claim is out of time.
[3] I have taken much longer to give this decision than I would have liked. I
apologise to the parties for the delay.
Mr Mackenzie’s claim
[4] Mr Mackenzie’s son, Kenneth, aged 21, was fatally injured in a motorbike accident on 1 October 1987. He was admitted to Tauranga Hospital with head injuries and put on life support. That was later withdrawn and Kenneth died early in the morning of 2 October 1987. Mr Mackenzie says that a doctor asked for consent to take Kenneth’s aortic valve but that was refused. Notwithstanding that refusal, Kenneth’s heart was removed. The aortic valve was used in a successful transplant operation at Greenlane Hospital in Auckland. The Tauranga coroner authorised an autopsy, which is said to have taken place early in the afternoon of 2 October 1987. Mr Mackenzie contends that the heart was removed before the coroner authorised the autopsy. The defendant does not agree. For reasons that I will give later, I do not think that the time of removal matters much. That aside, these broad facts are not in
dispute.1 While this case is at its pleadings stage, the defendant does not suggest that
Mr Mackenzie knew or should have known that the removal of the valve had gone ahead in disregard of the refusal of consent.
[5] Mr Mackenzie was Kenneth’s next of kin. Kenneth died intestate. He had no assets to speak of and there was no grant of administration of his estate. As Kenneth left no wife, de facto partner or children, Mr Mackenzie was entitled to apply for a grant of administration as one of Kenneth’s parents.2
[6] Mr Mackenzie says that he suspected that the hospital had taken the valve but he could not prove it. He began to make inquiries in 2002. On 21 March 2005 the National Transplant Donor Co-ordination Office wrote to him, advising that the valve had been removed and successfully transplanted. Mr Mackenzie corresponded with various health bodies, government departments, members of parliament and
ministers seeking redress but without success. He was told he had no claim for the
1 There are differences on details, but for this decision they do not matter. For example, Mr Mackenzie disagrees with a statement (on a form requesting the coroner to authorise an autopsy) that Kenneth suffered abdominal injuries.
2 High Court Rules 2008, r 27.35(4)(d).
removal of the valve. He was also informed that if he wanted to sue, the appropriate defendant was the Crown Health Financing Agency.3 He wrote to the agency in August 2006 and received a reply that the agency would be referring the matter to Crown Law Office. The agency wrote again on 24 November 2006 denying liability. Mr Mackenzie applied for legal aid but without success, despite challenging the decision of the Legal Services Agency as far as he could.4
[7] He began this proceeding on 23 November 2012. He does not have a lawyer. As well as setting out salient facts, his statement of claim alleges among other things that the defendant is legally required “to agree with the evidence provided and offer acceptable compensation claimed and agree to libel damages for the obstruction to the Justice I have sought over many years at great cost to me”. The prayer for relief seeks an apology, an admission of liability and damages. Mr Mackenzie does not allege that he suffered any recognisable psychiatric disorder or illness.
Has Mr Mackenzie sued the right defendant?
[8] In 2005 and 2006 Mr Mackenzie was told that the correct person to sue was the Crown Health Financing Agency, so he has done just that. Now the objection is taken that he has chosen the wrong defendant. That is not because he was given bad advice, but because the law has changed. The objection was taken not to score a cheap win against Mr Mackenzie, but to see that the proceeding should continue against the appropriate defendant. It is proposed that the Attorney-General be substituted as defendant under s 14(2) of the Crown Proceedings Act 1950. Mr Mackenzie however suggests Crown Law Office as the appropriate defendant.
[9] The removal of the heart took place at Tauranga Hospital, which was then under the control of a local board, but it is proposed that central government should answer for any wrong done. Working out why that is so requires going through the
restructuring of the health sector over the last 30 years.
3 Letters of Minister of Health of 27 July 2005, Deputy Prime Minister of 10 October 2005 and
Minister of Health of 21 April 2006.
4 Re CE (Civil) [2012] NZLAT 023, Mackenzie v Legal Services Commissioner [2012] NZHC
3098, [2013] NZHC 511, [2013] NZCA 326, [2013] NZSC 140 and [2014] NZSC 23 and 49.
[10] In October 1987 the Tauranga Hospital was within the Tauranga Hospital District, which was administered by the Tauranga Hospital Board established under the Hospitals Act 1957. The board was a body corporate capable of suing and being sued.5 It was vicariously liable for the actions not only of its staff, but also of others engaged to work for it, such as consultants.6 If Mr Mackenzie had sued in 1987, he could have sued the hospital board.
[11] Under the Area Health Boards Act 1983, Orders in Council could declare hospital districts to be area health districts administered by area health boards.7
These boards were also bodies corporate capable of suing and being sued. Under s
7(2)(b) of the Area Health Boards Act 1983, the boards took over all real and personal property of the hospital boards they replaced subject to all liabilities, charges and obligations affecting that property. Under the Bay of Plenty Area Health District Order 1989, on 1 June 1989 the Bay of Plenty Hospital District and the Tauranga Hospital District became the Bay of Plenty Health District, run by the Bay of Plenty Area Health Board. Mr Mackenzie could have sued that board after it was established.
[12] The next restructuring was under the Health and Disability Services Act
1993. That dissolved area health boards. It established four regional health authorities to purchase health services from a range of providers. Crown health enterprises were established in place of area health boards. Where assets and liabilities of area health boards were not transferred to any other transferee, they vested in the Residual Health Management Unit.8 That was also a body corporate
capable of suing and being sued.9 It succeeded to any liability for the actions of
Tauranga Hospital’s staff and consultants on 1 and 2 October 1987. Any liability had moved to an organ of central government.
5 Hospitals Act 1957, s 25(2).
6 Section 86(1).
7 Area Health Boards Act 1983, ss 5 and 6.
8 Health Reforms (Transitional Provisions) Act 1993, s 22(2) and (3); later renamed the Heal th
Sector (Transfers) Act 1993 with effect from 1 January 2001.
9 Section 16.
[13] The next restructuring, under the Health and Disability Services Amendment Act 1998, did not affect the present matter: any liability stayed with the Residual Health Management Unit.
[14] The New Zealand Public Health and Disability Act 2000 made more changes to the health sector, but under s 57 of that act, the Residual Health Management Unit continued as a body corporate owned by the Crown.
[15] Under s 3 of the New Zealand Public Health and Disability Amendment Act
2005, the Residual Health Management Unit was continued as the Crown Health Financing Agency, a Crown entity under the Crown Entities Act 2004. On the basis of this provision ministers told Mr Mackenzie that the body to sue was the Crown Health Financing Agency.
[16] That however was not the last change. Under s 27 of the New Zealand Public Health and Disability Amendment Act 2012, the Crown Health Financing Agency was disestablished. Under s 28, the liabilities of the Agency vested in the Crown and proceedings against the Agency could be continued against the Crown.
[17] As there is no government department or officer able to be sued in their own names for any liability in this case, under s 14(2)(c) of the Crown Proceedings Act the correct defendant is the Attorney-General. Mr Mackenzie says, however, that Crown Law Office should be the defendant. He blames it for having given poor advice to the Crown Health Financing Agency. I do not understand Crown Law Office to be a government department able to be sued in its own name. Besides, I see no basis for suing it. It acts as the government’s legal adviser and represents it in court. It owes its duty to its client, the government. This is not a case where a non-
client has a cause of action against the lawyer for the other side.10
[18] Accordingly, under r 4.56 of the High Court Rules 2008, I strike out the
Crown Health Financing Agency as the defendant and substitute the Attorney- General. He is in a sense the personification of the government for the purpose of
10 Connell v Odlum [1993] 2 NZLR 257 (CA) at 264.
this proceeding. As the claim is really against the government, I shall sometimes
refer to the defendant as “it”.
Does Mr Mackenzie have a cause of action?
[19] One ground for striking out a pleading is that it does not disclose an arguable cause of action.11 Another is that, even if the plaintiff does have an arguable cause of action, the defendant can show clearly an affirmative defence so that the plaintiff’s claim is frivolous, vexatious or is otherwise an abuse of process.12 This part of the decision deals with an application on the first ground. It is accordingly not necessary to consider now defences that might be invoked if Mr Mackenzie has an arguable cause of action. The defendant raises one affirmative defence, limitation, but that is considered as the third question. All the same, the limitation defence requires a consideration of Mr Mackenzie’s cause of action. If his cause of action cannot be identified, it is harder to fix the point when the limitation period starts.
[20] As to strike-out on the ground that no arguable cause of action is pleaded, in
Attorney-General v Prince the majority in the Court of Appeal said:13
A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (R Lucas & Son (Nelson Mail) Ltd v O'Brien [1978]
2 NZLR 289 at pp 294 – 295; Takaro Properties Ltd (in receivership) v
Rowling [1978] 2 NZLR 314 at pp 316 – 317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR
37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992]
2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude
jurisdiction (Gartside v Sheffield, Young & Ellis).
[21] In Couch v Attorney-General Elias CJ said:14
It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad”
11 High Court Rules, r 15.1(a).
12 Rule 15.1(c) and (d). Matai Industries Ltd v Jensen [1989] 1 NZLR 525 (HC);
Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721.
13 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
14 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.
[22] Where an amendment can cure a defect in a pleading challenged as disclosing no reasonably arguable cause of action, the court will usually allow the amendment rather than strike the pleading out. That focuses the inquiry on the substance of the plaintiff’s claim to see whether it gives rise to an arguable cause of action, notwithstanding shortcomings in the pleading. I have considered Mr Mackenzie’s statement of claim on that basis. He is not a lawyer. While he has tried to set out a competent statement of claim, no lawyer would want to lay claim to it.
Does Mr Mackenzie have a defamation claim?
[23] Paragraph 1 of the statement of claim refers to “libel damages for the obstruction to the Justice I have sought over many years”. In the way of some self- represented litigants Mr Mackenzie has used legal terminology without appreciating its correct use. Usually it is safe to pass over such clumsiness and to focus on what the case is really about. Out of thoroughness, the defendant addressed the libel allegation.
[24] I do not understand Mr Mackenzie to be using “libel” in its special meaning in Scottish law. As for its usual meaning, there is nothing to suggest that Mr Mackenzie has a claim for defamation. He does not complain that the government, any of the bodies in the health sector and anyone else in the government he dealt with has published any statements to third parties that would lower him in the opinion of right-thinking members of society. In the materials he has provided, he has included copies of letters he has received from ministers and others but he does not identify any defamatory statements in any of them and I cannot see any. There is nothing to suggest that any of these letters were sent to third parties. Again, to be complete, I see nothing in any of these letters that could give Mr Mackenzie a claim based on some alternative cause of action. The libel allegation does not need to be taken seriously. It is better to deal with what his case is really about – the removal of the aortic valve from Kenneth’s body to be used in a transplant operation.
Does Mr Mackenzie have a cause of action for the removal of the aortic valve without consent?
[25] The defendant says:
(a) The removal of Kenneth’s heart, despite the refusal of consent, did not give rise to any recognised actionable wrong to Mr Mackenzie either as primary or secondary victim.
(b)There is a long-established principle that there is no property in a dead body. While it acknowledges that exceptions to that principle have been recognised, none of them apply here.
(c) Because Kenneth’s body cannot be the subject of a claim to possession or ownership in law, there can be no cause of action in conversion, detinue or trespass to goods.
(d)Mr Mackenzie did not have a right to possession of the body, because at the time it was in the actual control of the Tauranga Hospital or the coroner. Any right to the body would not arise until any post-mortem ordered by the coroner had been completed and the body could be made available for burial.
(e) While an executor (or in his or her absence, next of kin) may have a duty to bury a body, the removal of an internal organ does not stand in the way of that duty being carried out.
(f) While Scottish and Canadian courts have allowed similar claims,15 the English High Court has rejected any claim for unlawful interference with a dead body,16 and that approach should be followed in New
Zealand.
15 Pollock v Workman (1900) 2 F 354; Hughes v Robertson 1913 SC 394; Stevens v Yorkhill NHS Trust [2006] CSOH 143, 2006 SLT 889; Edmonds v Armstrong Funeral Home Ltd [1930]
3 WWR 649, [1930] 1 DLR 676 (Alta SC).
16 In re Organ Retention Group Litigation [2004] EWHC 644, [2005] QB 506.
(g)For a claim in tort outside those based on unlawful interference with goods (conversion, detinue and trespass to goods), such as breach of statutory duty or negligence, proof of damage is required.
(h)For torts requiring proof of actual damage, intangible harm such as mental distress and anxiety, falling short of recognisable psychiatric disorder, are not enough to count as stand-alone damage.17
Mr Mackenzie has not pleaded any recognised head of damage.
(i)Similarly, in the absence of any claim to have suffered a recognisable psychiatric disorder or illness, he has no claim as a secondary victim.18
[26] In short, the defendant’s case is that the intentional dismemberment or mutilation of a dead body before it is handed over to next of kin for burial does not by itself carry any civil liability.
[27] Mr Mackenzie did not engage in any sensible way with the defendant’s
argument. He simply assumed that the actions of Tauranga Hospital were wrongful.
A common law question
[28] The issue whether there is an actionable wrong is a matter for the common law. There are however two statutes that are of interest: the Coroners Act 1951 and the Human Tissue Act 1964. Both have since been repealed but they were in force on 22 October 1987.19 They set out circumstances where it was lawful to interfere with a dead body. They might provide affirmative defences if the defendant could show that they applied to this case, but so far the defendant has not suggested that
they do. These statutes do not on their face confer any cause of action for the
removal of Kenneth’s heart to take the aortic valve.
17 Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281.
18 van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA).
19 Coroners Act 1988, s 47, and Sch 2; Human Tissue Act 2008, s 93.
Coroners Act 1951
[29] Under the Coroners Act 1951 a coroner inquired into the manner of death of any person in any case where the act required the death to be reported to him or her.20 Under s 10 a coroner could authorise a medical practitioner to carry out a post-mortem examination of the body of a deceased person. Under s 10(5) a coroner could give directions as to the removal or disposal of the body of any person whose death had been reported to him. Under s 11 a coroner could order the burial of the
body of any person whose death had been reported to him. Under s 12 the purpose of an inquest was to establish that a person had died, their identity and when, where and how the death occurred.
[30] Given the purpose of the act, its provisions could not justify using a post- mortem examination to gather a useful organ from the body of a deceased person to be used in a transplant operation. That would be a misuse of a post-mortem examination under the act. In Conway v Dalziel, a Scottish case where neither the post-mortem nor the removal of organs was authorised, Lord Adam said:21
It is not an ordinary incident of a post-mortem examination that separate organs of the body should be removed and never replaced. This is a much more serious wrong than the post-mortem examination itself.
In Re Organ Retention Group Litigation, after holding that in a lawful post-mortem removal and retention of organs for diagnosis was in order, Gage J said:22
I accept that the position would be different if the post mortem examination, in addition, contemplated use of a part or parts of a body for therapeutic, educational or research purposes.
[31] Accordingly, I do not regard it as necessary for Mr Mackenzie to prove that Kenneth’s heart was removed before the coroner authorised the autopsy. While removing the heart to ascertain the cause of death in an autopsy under the Coroners Act 1951 may be lawful, taking the aortic valve for a transplant after the coroner
gave the word for the post mortem would not be within the act. I also note that so
20 Coroners Act 1951, s 4.
21 Conway v Dalziel (1901) 3F 918.
22 Re Organ Retention Litigation, above n 16, at [126].
far there is no suggestion that Mr Mackenzie consented to the post-mortem or that his consent was sought.
Human Tissue Act 1964
[32] Among other things, the Human Tissue Act 1964 allowed persons lawfully in possession of a body of a deceased person to remove human tissue for therapeutic purposes, and for medical education and research, in specified circumstances. “Persons lawfully in possession of bodies of deceased persons” was defined to
include medical superintendents of hospitals.23
[33] Section 3 said:
(1) If any person, either in writing at any time or orally in the presence of two or more witnesses during his last illness, has expressed a request that his body or any specified part of his body be used after his death for therapeutic purposes or for purposes of medical education or research, the person lawfully in possession of his body after his death may, unless he has reason to believe that the request was subsequently withdrawn, authorise the removal from the body of any part or, as the case may be, the specified part, for use in accordance with the request.
(2) Without limiting subsection (1) of this section, it is hereby declared that the person lawfully in possession of the body of a deceased person may authorise the removal of any part from the body for use for the said purposes if, having made such reasonable inquiry as may be practicable, he has no reason to believe—
(a) that the deceased person has expressed an objection to his or her body being so dealt with after death, and had not withdrawn it; or
(b) that the surviving spouse or any surviving relative of the deceased person objects to the body being so dealt with.
(3) Subject to subsections (4) and (5) of this section, the removal and use of any part of a body in accordance with an authority given in pursuance of this section shall be lawful.
(4) No such removal shall be effected except by a medical practitioner, who must have satisfied himself by personal examination of the body that life is extinct.
(5) Where a person has reason to believe that an inquest may be required to be held on any body or that a post-mortem examination
23 Human Tissue Act 1964, s 2(2)(a).
of any body may be required by the coroner, he shall not, except with the consent of the coroner, -
(a) give an authority under this section in respect of the body; or
(b) act on such an authority given by any other person.
(6) No authority shall be given under this section in respect of any body by a person entrusted with the body for the purpose only of its interment or cremation.
(7) Nothing in this section shall be construed as rendering unlawful any dealing with, or with any part of, the body of a deceased person which is lawful apart from this Act.
[34] In this case Mr Mackenzie’s refusal to consent to the use of the aortic valve for a transplant would bar a defence based on s 3(2). There is no suggestion that, while alive, Kenneth had authorised the use of his body parts under s 3(1).
[35] While these statutes set out when it was lawful to interfere with a dead body (post-mortems required by coroners, human tissue removed for therapeutic purposes, or medical research or education), they did not state the legal consequences of removing tissue when the required conditions were not met. It is implausible that Parliament legislated on the basis that removing body parts generally was already lawful. Parliament usually passes legislation because it intends to affect the law in some way. It does not legislate redundantly.
[36] An argument going the other way is that these statutes creating exceptions prove the rule that outside the occasions set out in statute, removal of body parts is unlawful. That does not necessarily follow. Making removal of body parts lawful on defined occasions may give a defence to criminal liability,24 but that does not entail that, in addition, there must be civil liability outside those occasions. In my view Parliament may have been uncertain (because of insufficient clarity in the law)
whether there was civil liability for removing parts from dead bodies, but did intend to state certain circumstances when there could be no liability.25 Parliament left it to
the courts to work out civil liability outside those circumstances.
24 For example, Crimes Act 1961, s 150 - misconduct in respect of human remains.
25 Gage J came to a similar view of the United Kingdom Human Tissue Act 1961 (on which New
Zealand’s Act was modelled) in Re Organ Retention Group Litigation, above n 16 at [120].
The interest claimed by Mr Mackenzie
[37] Tort law upholds certain interests by imposing liabilities on those who affect those interests adversely. The interest claimed by Mr Mackenzie is that outsiders should not interfere with his son’s body between death and burial without consent or lawful authority. Is this an interest the law protects?
[38] Leaving the law aside for the moment, the disposal of a body after death is a matter of great importance to family, to friends and to the community generally.26 It provides the occasion to grieve, to mourn, to commemorate and to celebrate the life of the deceased and to share these matters with others. There are rituals and customs to mark the deceased’s passing. Those rites vary among communities, religious and other beliefs, and ethnic groups. Once it was taken for granted that an interment following Christian rites was the norm:27
Every person dying in this country … has a right to a Christian burial.
That assumption no longer reflects today’s diverse society.
[39] In European civilisation, at least since ancient Greece, there has been revulsion against treating a dead body as carrion.28 The body is a key element in all forms of funeral. Practices vary as to whether the body will be exposed or kept in a closed coffin; how it will be dressed or embalmed; whether it will be left alone or a vigil kept; who will carry the coffin, whether the body will be buried or cremated; where and how long after death it will be buried; and whether it should be kept
intact. In some communities there are strongly held views, often based on deep religious or cultural beliefs, that the body should be kept intact. For others, cremation is favoured as freeing the spirit from the body.
[40] One of the defence arguments is that the law should be concerned only to see that the body is disposed of. While there is a duty to dispose of the body, it is unimportant how that is done. It is a matter of indifference whether it is kept intact
before burial or cremation. The legal merits of that position will be considered later.
26 See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [1] per Elias CJ.
27 R v Stewart (1840) 12 Ad & E 773 at 778, 113 ER 1007 at 1009 per Denman CJ.
28 See Sophocles’ Antigone (written about 441 BC).
The point to note now is that it falls far short of recognising the interest of communities in the treatment of the bodies of their dead.
[41] Challenges to the way a body is kept or treated between death and burial or cremation may come from two sources: kith and kin, and outsiders. For the first, a common example is the often spirited debate on the marae during a tangihanga as to the final resting place of the tūpāpaku. While that is accepted, even expected, as part and parcel of a tangihanga, the matter becomes more complicated when the whānau include non-Maori who do not understand that tikanga. As cases such as Takamore v
Clarke show, the law can become involved.29 To expand the point, cross-cultural
differences within a kinship group increase the risk of unresolved dispute and further conflicts.
[42] Outsiders who assert an interest in dealing with the body may have apparently worthy objectives: coroners to find out the cause of death; police to investigate offending; doctors for therapeutic purposes; scientists and places of learning for research and study. If kith and kin can have a say in what is to happen to the body, decisions are required as to whose interest should prevail. That can also involve the law.
[43] What if the law were to deny that the treatment of a body between death and final disposal was an interest worthy of its protection? That does not mean that the law does not apply in situations such as this case. As a German lawyer would say, Keine Antwort ist auch eine Antwort.30 Instead, other rules of law would come into play. For example, the rules of real property, including the law of trespass, might be used to thwart those seeking access to the body. Those wishing to interfere with a body might shut out those wishing to keep it intact. Accepting the defendant’s argument that interfering with a body is not actionable results in other laws applying, but those other laws are not well adapted to deal with the competing interests that
can arise in cases such as this.
29 Takamore, above n 26.
30 No answer is also an answer.
[44] In fact, the law has recognised that the interest in the appropriate treatment and disposal of a dead body does involve civil liabilities. For New Zealand law, it is not necessary to look further than the Supreme Court’s decision in Takamore v Clarke.31 In that case, the deceased was Tūhoe, but had spent the last twenty years of his life in Christchurch with his partner, whom he named his executor in his will. After his death his Tūhoe whānau moved his body to the Bay of Plenty and buried it
in a family urupā. His partner successfully sued for orders allowing her to enter the urupā to disinter the body and re-inter it in Canterbury. While the Tūhoe whānau was unsuccessful in all courts, the judgment of the majority in the Supreme Court, (McGrath, Tipping and Blanchard JJ) is obviously of greatest importance. They held that:
(a) There is a common law rule under which personal representatives have both the right and duty of disposal of the body of a deceased.32
They drew on previous case law in New Zealand and England, including the conclusion of Kay J in Williams v Williams33:
Accordingly the law in this country is clear, that after the death of a man, his executors have a right to the custody and possession of his body (although they have no property in it) until it is properly buried.
(b)Where no executor has been appointed, is available or willing to act, the person who is the potential administrator in the sense of having priority to claim administration has the right to decide.34
(c) The rule becomes operative where there is no agreement or acquiescence on what is to be done, where arrangements have broken down, or where nothing is happening. The personal representative has the common law duty to attend to disposal and right to possession
for that purpose.35
31 Takamore, above n 26.
32 At [152].
33 Williams v Williams (1882) 20 Ch D 659 (Ch) at 665.
34 Takamore, above n 26, at [156].
35 At [155].
(d)Providing a rule for a decision-maker is practical and convenient, when differences arise as to the manner and disposal of the body. It assists in speedy resolution of differences.36
(e) The rule had been built on experience with regard to perceived social necessities and changing public policies. Personal representatives are required to take into account different cultural, religious, spiritual practices as well as the views of immediate and wider family.37 The views of those close to the deceased may arise from customary, cultural and religious practices, which they consider should be observed. There is no requirement to engage in consultation, which may be impractical. The representatives may have regard to the practicalities of burial or cremation without undue delay.38 They may also follow their personal views, provided they have considered all relevant factors and viewpoints.39
(f) This approach allows a range of values to be weighed without presuming in advance which cultural position will prevail, while also ensuring that decision-making will be prompt for reasons of public health and decency.40
(g)The power of the personal representative to ensure proper disposal continues after burial.41
(h)A person aggrieved at a decision of the personal representative or the failure of the representative to resolve matters may challenge it in the High Court, but any review process must be straightforward to
provide a prompt decision.42
36 At [153].
37 At [152].
38 At [152].
39 At [156].
40 At [158].
41 At [159].
42 At [160]-[162].
(i)The common law position was not displaced by whānau invoking tikanga as to burial.43
[45] The case also shows that the plaintiff, who as personal representative was held entitled to control the burial of the body, could claim redress from those who had taken it. The relief went to specific restitution of what had been taken intentionally. The fact that the body was not property and that the plaintiff did not have possession of the sort required to sue for conversion or detinue did not bar her claim. Her right to control the disposal of the body applied, even though at times she
did not have actual custody of the body.44 While it recognised that a wrong had been
done, the Supreme Court was not concerned to find a place for that wrong in the list of recognised torts. The plaintiff was not required to show that she was a primary victim as opposed to a secondary victim, nor that she had suffered any identifiable head of damage. The deliberate interference with her right to decide the disposal of the body was sufficient for the court to grant relief.
[46] One of the earlier New Zealand cases the majority followed is Murdoch v Rhind.45 The terms of the relief Northcroft J granted are significant – an injunction restraining the defendants from interfering with the function of the executor in the disposal of the body of the deceased.46
[47] There are differences in this case:
(a) The challenge to the treatment of the body pending final disposal came from an outsider, the hospital, not from anyone close to Kenneth.
(b)The hospital did not remove the entire body, but took only one part which it did not replace.
43 At [164].
44 The body was removed from a hall beside a marae where it was lying, while the plaintiff was
absent but the Tūhoe whānau kept vigil.
45 Murdoch v Rhind [1945] NZLR 425 (SC).
46 At 427.
(c) Specific restitution of the removed part was never going to be an option.
(d)The body was in a hospital and had not been handed over to relatives for burial. The hospital was lawfully in possession of the body under the Human Tissue Act 1964.
(e) There was no executor.
(f) The circumstances in which the family was asked for consent under s
3(2) of the Human Tissue Act 1964 required a quicker response than would be required when, as in Takamore, the final resting place of the entire body is being decided.
[48] If the law gives relief for unauthorised deliberate interference with the function of a personal representative in disposing of a deceased body, do these differences matter?
[49] First, Takamore upheld the authority of a personal representative to decide the disposal of the body against the contrary wishes of others close to the deceased. But it would be short-changing that authority to limit it to challenges only from them. It would be odd to hold that while a personal representative’s decision can prevail over family and friends, it can have no effect on outsiders. Upholding the personal representative’s authority vis-à-vis outsiders is important, as it provides a person with whom they can deal when arrangements need to be made for the body. Stable arrangements for the disposal of the body can be made, for example with funeral undertakers. Further, outsiders should not be in a better position than members of the family. Subject to the law recognising specific circumstances when the
requirements of outsiders may prevail,47 there is no good reason for allowing
outsiders generally to deal with the body of the deceased against the wishes of the
personal representative. Moreover, outsiders’ rights must be less than those close to the deceased in at least this respect: while those close to the deceased have standing
47 Such as under legislation allowing post-mortem examinations.
to test a personal representative’s decision by applying to court under paragraph
[39](h) above, there is no reason to allow outsiders to intervene in such matters.
[50] Second, as Takamore held that removal of the entire body was wrongful, removal of parts is also. The dismemberment of a body may be even more hurtful than its burial in a place not acceptable to the personal representative. Important cultural and religious values may be affronted.
[51] Third, whereas in Takamore the court was able to order restitution of sorts to remedy the wrong, that is not possible here. But that does not mean that the personal representative should be left without a remedy for the wrong done. To refuse a remedy would be tantamount to letting the defendant get away with it. On this, Lord Holt CJ’s seminal dissent in Ashby v White states the principle.48 In that case the plaintiff had been obstructed from voting. The lost opportunity to vote could not be restored, but Lord Holt held that he could recover at common law. The wrong was actionable without proof of actual damage:49
If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal...
Where a man has but one remedy to come at his right, if he loses that he
loses his right…
And I am of opinion, that this action on the case is a proper action. My brother Powell indeed thinks, that an action upon the case is not maintainable, because here is no hurt or damage to the plaintiff; but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there. And in these cases the action is brought vi et armis. But for invasion of another's franchise, trespass vi et armis does not lie, but an action of trespass on the case; as where a man has retorna brevium, he shall have an action against any one who enters and invades his
48 Ashby v White (1703) 2 Ld Raym 938, 92 ER 126 (KB); there are also shorter reports at Holt KB
524, 90 ER 1188 and 1 Salk 19, 91 ER 19. His judgment was upheld in the House of Lords.
49 At 953-955.
franchise, though he lose nothing by it. So here in the principal case, the plaintiff is obstructed of his right, and shall therefore have his action.
[52] Given the importance that the Supreme Court placed on the executor’s authority to manage the disposal of the body in Takamore, the right to carry out that function without interference is to be vindicated in the same way. It should not be open to anyone interfering with the body unlawfully to say that no harm has been done or that there should be no remedy for that unlawful interference. Any inability to carry out specific restitution does not stand in the way of the personal representatives enforcing their rights.
[53] Fourth, the personal representative’s authority to allow or forbid interference with the body is distinct from having actual custody or control of the body. The authority begins on death, subject to those recognised supervening exceptions (such as post mortems authorised by a coroner or directions as to handing over given by a coroner). Hospitals and similar places may hold bodies, but not on the basis that they have a free hand to do what they will with a body. Under the Human Tissue Act
1964, there were recognised exceptions. One of those was that a hospital could remove a part if, having made reasonable inquiries, it had no reason to believe that the surviving spouse or any surviving relative objected.50 In those cases, the personal representative would be bound by the absence of objection from the spouse or relative. But that exception did not signify that the personal representative did not have authority when the circumstances in that act did not apply.
[54] Fifth, the absence of an executor is not fatal. The majority in Takamore recognised that, in holding that the person entitled to a grant of administration on intestacy had the authority of a personal representative under the rule. The judgment did not require an actual grant of administration. Mr Mackenzie meets the requirement. He had authority to make decisions as to his son’s body pending burial. He is entitled to sue as personal representative under the rule.
[55] Sixth, there is a difference in circumstances – between considering very shortly after death whether to permit a part to be removed from a body, when
medical specialists require a prompt decision, and determining where the body
50 Human Tissue Act 1964, s 3(2).
should finally lie. There is less time for a decision maker to consider what to do and to ascertain the views of others. There may also be difficulties in establishing who the appropriate decision maker is. The Human Tissue Act 1964 catered for some of those difficulties by allowing the hospital, as the person in possession of the body, to make reasonable inquiries and to act if it had no reason to believe that the surviving spouse or any surviving relative objected. To that extent the authority of the personal representative (when they were not a surviving relative) was reduced. But that does not give reason to deny the personal representative’s authority outside those circumstances.
[56] Non-lawyers may raise another matter as distinguishing this case from Takamore. Here the aortic valve was successfully used in a transplant operation to the benefit of a worthy recipient. Would that not justify the hospital’s actions?
[57] In response, at this stage we are concerned only with whether Mr Mackenzie has an arguable cause of action, not with potential defences to his claim. Next, Parliament has not legislated that parts of a body may be used therapeutically despite the objections of surviving relatives. Overriding their wishes or those of the personal representative allows for one set of cultural preferences to prevail over others. As the Supreme Court recognised in Takamore, on this the law has no cultural preference. While many would consider it praiseworthy to allow a vital organ to be used in a health-enhancing operation, the law’s role does not go beyond upholding the authority of the personal representative. It does not extend to compelling the representative to do what some would regard as virtuous.
[58] To sum up, the decision of the majority in Takamore leaves it open to find that interference with the authority of the personal representative to decide on the treatment and disposal of the body of the deceased is actionable. Removal of body parts without the consent of the representative is one actionable form of interference. The representative’s authority runs from the time of death up to and after burial or cremation. The representative has standing to sue for that wrong and does not need to prove particular damage.
Other jurisdictions
[59] Some other jurisdictions have recognised a cause of action in tort for interference with dead bodies.
United States
[60] In the United States, the Restatement of Torts says:51
(a) One who is entitled to the disposition of the body of a deceased person has a cause of action in tort against one who intentionally, recklessly or negligently mistreats or improperly deals with the body, or prevents its proper burial or cremation. The technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a “property” or a “quasi-property” right. This does not, however, fit very well into the category of property, since the body ordinarily cannot be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation. In practice the technical right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress…There is no need to show physical consequences of the mental distress.
(b) It is not within the scope of this Restatement to attempt to state who is entitled to the disposition of a dead body. The matter is governed by the statutes or common law rules of the various jurisdictions…Normally the right of disposition is in the surviving spouse, if any; or if none, then in the next of kin in order of succession. It may, however, be in the executor or administrator of the deceased.
(c) If the deceased leaves instructions for the dispositions of his body or any of his body organs that are legally valid and binding on the person bringing the suit, the interference with the body by one who is authorised to do so is a privileged action and there is no liability. The phrase, “subject to liability,” permits the showing of a privilege in defence…Other privileges, such as that of performing a post mortem on the body, may also arise.
[61] The following dictum of Potter J in Pierce v Proprietors of Swan Point
Cemetery has been frequently cited:52
51 Restatement (Second) of Torts §868 (1979).
52 Pierce v Proprietors of Swan Point Cemetery 10 RI 227, 14 Am Rep 667 (Sup Ct RI 1872) at
677. Cited with approval in Smith v Tamworth City Council (1997) 41 NSWLR 680 (SC) at
690-691.
… That there is no right or property in a dead body, using the word in its ordinary sense, may well be admitted. Yet the burial of the dead is a subject which interests the feelings of mankind to a much greater degree than many matters of actual property. There is a duty imposed by the universal feelings of mankind to be discharged by some one toward the dead; a duty, and we may also say a right, to protect from violation; and a duty on the part of others to abstain from violation; it may therefore be considered as a sort of quasi property, and it would be discreditable to any system of law not to provide a remedy in such a case.
(Emphasis added)
While that has been referred to for its use of “quasi property”, it is also important for its recognition of a right to protect from violation and a corresponding duty not to violate.
Canada
[62] In Edmonds v Armstrong Funeral Home Ltd,53 a widower sued the funeral undertaker and a doctor when the undertaker allowed the doctor to carry out an autopsy and removed part of the body of his deceased wife, after the plaintiff had refused consent. The court held the plaintiff to have a cause of action. The unauthorised intentional interference with the body was the injury entitling the plaintiff to claim for mental anguish and suffering. It distinguished a decision that
had rejected a claim in negligence for mishandling a dead body.54
Scotland
[63] In Stevens v Yorkhill NHS Trust a baby was born with a congenital deformity. Following surgery she suffered multiple organ failure.55 Life support was withdrawn. After death the mother was asked for and gave consent to a post mortem after an explanation that it would help babies born with a similar defect, but she was not told that body parts would be removed. Unknown to the mother, the baby’s brain was removed. When she found out, the mother suffered a major depressive episode.
In a hearing on the pleadings, she was held entitled to sue for the removal and
53 Edmonds, above n 15.
54 Miner v CPR (1911) 3 Alta LR 408, 18 WLR 476.
55 Stevens, above, n15.
retention of body parts without informed consent and also in negligence as a primary victim. Macaulay QC reviewed the Scottish cases on the first head and said:56
…what appears to lie at the heart of those decisions is the fact that near relatives suffered affront by the unauthorised actings. The Judges in the Scottish cases considered that, in the circumstances, the unauthorised post- mortems and the unauthorised removal and retention of body parts, disclosed such an insensitivity to the feelings of near relatives following upon the death of a loved one, that such conduct constituted an affront to their dignity as relatives of the deceased so as to justify being classified as a civil wrong in which damages by way of solatium could be claimed.
[64] That ground for granting relief is different from one based on upholding the authority of a personal representative to bury a deceased body, a point the judge made. He distinguished the Scottish approach from those taken in common law jurisdictions. He also referred to and distinguished an important decision in parallel
English litigation, In Re Organ Retention Group Litigation.57
[65] It appears from that decision that Scottish law regards the interference with a body by a post-mortem examination and the removal of organs without replacing them. Consent to a post-mortem did not entail consent to the permanent removal of body parts.
England
[66] So far in England the courts have not recognised a cause of action for wrongful interference with a dead body.
[67] In Dobson v North Tyneside Health Authority the deceased had died in hospital with brain tumours.58 A coroner ordered a post mortem. A pathologist removed the brain and preserved it in paraffin. The body was returned to the family for burial without the brain. That was kept at the hospital and later disposed of. Later one of the deceased’s family obtained a grant of administration and sued for failure to keep the brain or to take a section of the brain tumours. The family wanted
it to see if the brain could provide evidence for a possible claim against the hospital.
56 At [57].
57 In Re Organ Retention Group Litigation, above n 16.
58 Dobson v North Tyneside Health Authority [1997] 1 WLR 596 (CA).
The post-mortem and the retention of the brain were held to be lawful as authorised under the relevant law for coroners. There was no duty to retain the brain after the cause of death had been found. The Court of Appeal held that there was no cause of action, relying on the principle that there is no property in a body. It recognised that there are exceptions to that principle, one being when there is a duty to bury or dispose of a body, another when the body has been subject to work and skill so as no
longer to be merely a corpse awaiting burial.59 The first exception did not apply –
the plaintiff did not require the brain for the purpose of burial; the second favoured the hospital. Because the decision recognised that the duty to bury may give rise to rights in a dead body, it is not inconsistent with the principle of upholding the authority of a personal representative. The effect of that decision is that the wish to have access to parts of a body for evidential purposes is not an interest the law protects in the absence of express statutory provision.
In Re Organ Retention Group Litigation60
[68] The defendant relies on this decision to show that Mr Mackenzie does not have a cause of action. There was a group action by parents of deceased children on whom there had been post-mortems to establish their causes of death. Organs of the children had been removed, kept and later disposed of without the knowledge or consent of the parents. Gage J decided three lead cases. In two the parents had consented to post-mortems. In the third, a coroner had directed it. In all cases psychiatric injury was proved. The evidence also showed that when tissue is required for histological examination very sophisticated processes may be applied before there can be any microscopic examination. The parents sued for wrongful interference with a body and in negligence. For the first cause of action it was
submitted that the requirements for the tort were:61
(a) The claimant must establish a duty/right to possess the body of his or her deceased child; and
59 At 600-601- applying the decision of the High Court of Australia in Doodeward v Spence (1908)
6 CLR 406.
(b)It must be proved that the defendant interfered with that duty/right by retaining and/or disposing of body parts without lawful authority.
[69] Gage J held that no such claim was available. An important aspect of his decision is his finding that the post-mortems were lawful, as authorised by the parents’ consents or by the coroner. In his judgment it followed that the removal and retention of body parts to establish the cause of death was lawful. The right to possession of the body parts passed to the hospitals because of the work and skill applied to the body parts and the hospitals were entitled to dispose of the parts as they wished. They were not required to return them to the parents in the absence of specific requests made at the time consent was given.
[70] He started with the principle that, in general, there is no property in a body and noted the exception in Doodeward v Spence that a body may acquire different attributes after the application of skill, for example, dissection and preservation.62
He recognised the duty on a parent to bury but held that it was not unlimited. Its purpose was to prevent a nuisance caused by unburied bodies.63 A hospital may retain a body after death, for example until a coroner’s investigation or inquest is completed. The duty to bury does not extend to parts lawfully removed and retained in a post mortem. Once body parts had been subject to work and skill, the hospitals became entitled to possess them under the exception in Doodeward v Spence.64
Because consent to carry out a post-mortem involved consent to all the proper procedures involved in a post mortem, the removal of the organs was lawful and the right of the parents to possess them based on the duty to bury did not arise.65 Gage J held therefore that no cause of action arose.
[71] He considered the hypothetical case of a parent, who on giving consent to a post-mortem, had required the return of the organs. While it might be arguable that a cause of action for conversion might exist, because such a claim in respect of the
body of a deceased person was not recognised by an English court he was not
62 At [135].
63 At [136]-[139].
prepared to say that one existed.66 He went on to consider that a duty of care in respect of the parent’s stipulation might arise and failure to comply would prima facie amount to breach of that duty. In circumstances where a claim for negligence can arise, there was no reason to construct another cause of action, which was not subject to the controls inherent in any negligence claim.
[72] He considered the claims in negligence in terms of duty of care, scope of the duty, primary or secondary victims, breach of the duty, foreseeability of damage, causation and damage. In the case of the post mortem directed by a coroner, he held that no duty of care was owed to the plaintiff in the absence of any relevant doctor- patient relationship. One of the other cases failed on the facts on foreseeability of harm. Only one succeeded.
[73] By way of comment on the case:
(a) The learned judge approached the question of cause of action for interference with a body after first establishing that there was a defence based on the lawfulness of the post mortems, including the removal of body parts.
(b)He left hanging the legal position if the removal of body parts had been unauthorised, that is, outside any consent given by parents or direction by a coroner. He noted that the position would be different if body parts were removed for a purpose other than establishing the cause of death, but he did not take this further.67 He did not have to, because he was not required to decide that matter, but it is in issue here.
(c) He addressed the parents’ role in dealing with their children’s bodies after death as being one of duty, but limited. As all parts had been disposed of, there was no ongoing duty. He did not consider it in
terms of rights and powers. The Supreme Court’s decision in
66 At [161].
Takamore recognises a more extensive role, with the executor’s function continuing after burial. If the executor’s function was no more than a duty to bury, the Tūhoe whānau could have argued, that with the late Mr Takamore now buried, the duty did not continue after the disposal of the body.
(d)In holding that the parents did not obtain any right to possession of the bodies of the children until after the hospitals had carried out the post- mortems, his approach was one used in claims for detinue, conversion and trespass to goods. Again, Takamore did not require that approach. It recognised Ms Clarke’s rights as running from death by virtue of her executorship.
(e) As a reason for not allowing a cause of action based on interference with a body, the learned judge considered that the law of negligence should do the job, given its controls on liability. While those controls are appropriate for claims for unintended harm, the law of negligence is inefficient for claims for intentional interference. That can be seen in the decision: no duty of care arose in the case of the coroner’s post- mortem and in another it was not foreseeable that a mother would suffer psychiatric disorder. On that basis apparently stoic parents could never have a claim. I do not regard the law of negligence as providing a convenient substitute for a cause of action that targets intentional interference with a body.
[74] The judgment in Re Organ Retention Group Litigation is undoubtedly impressive for its thoroughness and attention to detail, the care with which it was written, its sensitivity to all parties and witnesses and the learning of Gage J. Despite that, and with the greatest of respect to Gage J, I am not persuaded that I should apply it to hold that there is no cause of action in New Zealand for intentional interference with a dead body without the authority of a personal representative. That is because:
(a) It is inconsistent with the binding decision in Takamore, which upholds a personal representative’s authority in a dead body as extending beyond a duty to bury and as applying independently of a right to possession under claims for conversion, detinue and trespass. That authority extends to allowing and forbidding interference with a body.
(b)It does not address the case of unauthorised interference with a body, that is, without the consent of the deceased, the personal representative and outside any statutory exception.
(c) Its preference for the law of negligence does not provide a workable replacement for a tort that addresses intentional interference with a body.
[75] In my judgment at this strike-out stage, Mr Mackenzie has an arguable case that as the personal representative under Takamore he may sue for the unauthorised removal of the aortic valve from Kenneth’s body for use in a transplant operation. That is a stand-alone actionable wrong, which does not need to be shoe-horned into some other tort. It does not require proof of damage.
[76] I add:
(a) I am concerned in this decision only to establish whether Mr Mackenzie has an arguable cause of action as a matter of law. No evidence has been given. In any claim on that cause of action, it is likely that the court’s decision will be informed by expert evidence from medical specialists. That evidence may show the need for various practical considerations to be brought into account. A finding of a possible cause of action is not a rejection of such evidence or its relevance to liability.
(b) In the Antigone v Creon contest, the default position under the
common law is Antigone’s - respect for the body. Those in the Creon
position wishing to assert public interest reasons to interfere with the body as taking precedence will need to identify statutory provisions giving effect to them.
(c) Consent provides a defence. The personal representative need not be the only source of consent. Under the Human Tissue Act 1964 a reasonable belief in absence of objection from the deceased or surviving relatives was also part of a defence. The deceased’s consent while alive may authorise interfering with a body. Similarly, in those communities with burial societies, membership of a society may be sufficient authority to deal with the body without involving the personal representative.
(d) I have referred to the Coroners Act 1951 and the Human Tissue Act
1964 as they were in force in 1987. The current corresponding legislation is the Coroners Act 2006 and the Human Tissue Act 2008. While they also seem to be silent on civil liabilities, they have more detailed provisions dealing with consent, removal and return of body parts, no doubt because of overseas experience and litigation, such as Re Organ Retention Group Litigation.
(e) I have held that the wrong is actionable without proof of damage. On a strike-out application based on absence of arguable cause of action, Mr Mackenzie is not required to prove actual damage. That is a matter for trial. The matter is different where actual damage is part of the cause of action.
[77] If Mr Mackenzie were not the personal representative, he might have to fall back on a claim in negligence. He has not pleaded negligence. Nor has he pleaded any actionable damage. In particular he has not alleged any psychiatric disorder attributable to his discovery of what really happened to Kenneth’s body. Even taking a liberal view of allowing amendments, I cannot see any basis for Mr Mackenzie to sue in negligence in the absence of any pleading of actual damage.
Is Mr Mackenzie’s cause of action statute-barred?
[78] Limitation statutes set time limits for bringing proceedings. If a proceeding is not started by filing the appropriate documents in court within the time fixed by the act, the claim will be statute-barred.
[79] For a strike-out application based on a limitation defence, Tipping J stated the approach in Murray v Morel & Co Ltd:68
Read as a whole my judgment in Matai can be seen as holding that the onus is on the defendant to show that a claim, or at least part of it, is statute- barred, unless the plaintiff is able to rely on some extension of the ordinary limitation period or some postponement of the commencement of that period. The question which arises in this case concerns what the plaintiff must do to resist the striking out of a claim which, subject to matters of postponement and extension, is clearly statute-barred.
I consider the proper approach, based essentially on Matai, is that in order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the Court that the plaintiff’s cause of action is so clearly statute- barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process. If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the Limitation Act, the defendant will be entitled to an order striking out that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back within time.
In the end the Judge must assess whether, in such a case, the plaintiff has presented enough by way of pleadings and particulars (and evidence, if the plaintiff elects to produce evidence), to persuade the Court that what might have looked like a claim which was clearly subject to a statute bar is not, after all, to be viewed in that way, because of a fairly arguable claim for extension or postponement. If the plaintiff demonstrates that to be so, the Court cannot say that the plaintiff’s claim is frivolous, vexatious or an abuse of process. The plaintiff must, however, produce something by way of pleadings, particulars and, if so advised, evidence, in order to give an air of reality to the contention that the plaintiff is entitled to an extension or postponement which will bring the claim back within time. A plaintiff cannot, as in this case, simply make an unsupported assertion in submissions that s 28 applies.
[80] Initially the defendant applied to strike out under r 15.1(a) of the High Court Rules (no reasonably arguable cause of action) as a basis for the limitation defence, but later recognised that under Murray v Morel & Co Ltd and other cases the
application ought properly to be considered on the ground that the statement of claim
68 Murray v Morel & Co Ltd, above n 12, at [32]-[34].
is frivolous or vexatious or otherwise an abuse of process. Leave to amend was sought. Mr Mackenzie did not object. The application was amended accordingly.
Limitation for removal of aortic valve
[81] Applying the approach of Tipping J in Murray v Morel & Co Ltd, there are two questions:
(a) Has the defendant satisfied me that Mr Mackenzie’s cause of action is so clearly statute-barred that his claim can be properly regarded as an abuse of process?
(b)If I am so satisfied, has Mr Mackenzie shown an arguable case that, notwithstanding that the case is out of time, there is an argument as to extension or postponement so as to bring the case back within time?
[82] The applicable limitation statute is the Limitation Act 1950. That was repealed by the Limitation Act 2010 with effect from 1 January 2011, but subject to important savings.69 Under ss 59 and 61 of the 2010 Act, causes of action based on acts or omissions before 1 January 2011 continue to be dealt with under the 1950
Act.70 The 2010 Act also added new limitation provisions for certain causes of
action based on acts or omissions before 1 January 2011, but it did not remove any limits in force under the 1950 Act.71
[83] The case requires consideration of these provisions of the Limitation Act
1950:
Section 4
(1) Except as otherwise provided in this Act or in subpart 3 of Part 2 of the Prisoners' and Victims' Claims Act 2005, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say,—
69 Limitation Act 2010, s 57.
70 Section 61 inserted a new s 2A, another saving provision, into the Limitation Act 1950.
71 See the longstop periods under s 23A to 23D of the Limitation Act 1950, inserted by s 62 of the
Limitation Act 2010.
(a) Actions founded on simple contract or on tort:
...
(6A) Subject to subsection (6A) of this section, a defamation action shall not be brought after the expiration of 2 years from the date on which the cause of action accrued.
(6B) Notwithstanding anything in subsection (6A) of this section, any person may apply to the Court, after notice to the intended defendant, for leave to bring a defamation action at any time within
6 years from the date on which the cause of action accrued; and the
Court may, if it thinks it just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law (other than the provisions of subsection (6A) of this section), or by any other reasonable cause.
(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date:
Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.
Section 28
Where, in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or
(b) The right of action is concealed by the fraud of any such person as aforesaid;
...
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
...
[84] Section 4 is relevant to the first question in paragraph [78] above, section 28 to the second.
[85] In Murray v Morel & Co Ltd the Supreme Court settled the approach for fixing when time starts to run under s 4. It rejected a submission that time generally ran from when a cause of action was reasonably discoverable. While it recognised that case law had established exceptions in the case of sexual abuse where victims had not appreciated that the abuse had caused them mental injuries,72 and personal
injuries where plaintiffs had no way of knowing that they had been injured,73 these
should not be expanded. The following from the judgment of Tipping J sums up the position of the majority:74
In my view the numerous references in the Limitation Act to accrual of a cause of action can only be construed as references to the point of time at which everything has happened entitling the plaintiff to the judgment of the court on the cause of action asserted. Save when the Limitation Act itself makes knowledge or reasonable discoverability relevant, the plaintiff's state of knowledge has no bearing on limitation issues. Accrual is an occurrence- based, not a knowledge-based, concept. The Limitation Act as a whole is structured around that fundamental starting point. The periods of time selected for various purposes must have been chosen on that understanding. The circumstances of postponement and extension have themselves been similarly framed.
[86] As Mr Mackenzie’s claim is in tort, s 4(1)(a) applies. His claim is not for bodily injury. As explained, the wrong was to a corpse, something without life. The case therefore does not come within s 4(7). The limitation period is six years from when the cause of action arose. That was on 22 October 1987 when the heart was removed from Kenneth’s body. Damage is not an ingredient of the cause of action. Mr Mackenzie did not have to await any further events to make his claim. The six years in which Mr Mackenzie could bring a claim expired at the end of 21 October
1993. The defendant has shown clearly that it has a limitation defence, unless
Mr Mackenzie can show some arguable basis for an extension or postponement.
[87] That leads to the second question under paragraph [81] above. Here, Mr Mackenzie needs to show some arguable basis for saying that the time began
running from some later time. Section 28(b) gives him an argument for postponement. From the nature of the case he may be able to contend that the fact that the valve had been removed from Kenneth’s body had been fraudulently concealed. He had refused consent to removal of the valve. The body was returned for burial without any advice that the valve had been removed and in circumstances where Mr Mackenzie could not be expected to know otherwise. In concept the
position is not far removed from the deliberate covering up of building defects:75
It is obvious that where a builder knowingly lays defective foundations, and then deliberately covers the work up so that the defect will be hidden, he has fraudulently concealed from the owner his breach of contract.
[88] The defendant took the point that because Mr Mackenzie says that he was suspicious, he should have started his inquiries earlier. That is not a point I can determine conclusively against Mr Mackenzie on a strike-out application with limited materials. It requires a fuller inquiry into the facts.
[89] The defendant is on stronger ground in pointing out that even if he did not have sufficient information to allow him to bring a proceeding any earlier, once he received the letter of 21 March 2005 from the National Transplant Donor Co- ordination Office telling him about the transplant, he did know the facts required to start a proceeding. I accept that argument. At the latest Mr Mackenzie had six years after he received that letter to file a proceeding in court. He does not have an arguable case for any longer postponement of the limitation period. He brought this proceeding out of time.
[90] In response, Mr Mackenzie argued that his claim was in time because he started it within six years of the letter of the Crown Health Financing Agency of
24 November 2006. He says that he first had to lodge a claim with the agency and it was only when it declined that claim that his cause of action accrued. For support he relies on the letter of the Minister of Health of 21 April 2006:
Again you ask for a straightforward “yes” or “no” answer to your request for compensation in relation to matters around your son’s death and the removal
of his heart. I cannot give you such an answer. As you have already been told several times, any request for compensation from the Government will need to be actioned through the Crown Health Financing Agency.
If you do not wish to accept that advice, but rather take other action, that is entirely your choice. However I reiterate that the Crown Health Financing Agency is the correct entity if you wish to take legal action.
[91] All the minister was telling Mr Mackenzie was that if he wanted to pursue his claim for compensation, he should take the matter up with the agency, rather than the minister, and if he wanted to sue, the agency was the correct entity. In law there was no requirement for Mr Mackenzie to lodge a claim with the agency before suing. The minister’s letter cannot be read as suggesting otherwise. Mr Mackenzie has misunderstood the law. His reliance on the correspondence with the minister and the agency does not help him get over the problem that his claim is out of time.
Limitation for defamation claim
[92] Out of thoroughness again, the defendant addressed Mr Mackenzie’s libel allegation. I have held that Mr Mackenzie does not have a claim in defamation, so the matter strictly does not require a decision. In case it did, any defamation claim based on statements made in correspondence is outside the two year limit under s
4(6A) of the Limitation Act 1950. (One qualification to that is a letter of the Minister of Justice of 12 April 2012, but there is nothing in that that could possibly give any ground for a legal proceeding). I cannot see any basis for an argument for an extension of time under s 4(6B), because Mr Mackenzie has not applied for one. Besides, I can see no basis for a claim in defamation for the reasons given above (absence of defamatory statement and absence of publication to third persons). Because of likely affirmative defences of truth and qualified privilege, the absence of any damage to Mr Mackenzie’s reputation and the absence of any explanation for not having brought a proceeding in time, any leave application would be doomed from the start.
Outcome
[93] While Mr Mackenzie has an arguable cause of action for the removal of the
aortic valve from Kenneth’s body for use in a transplant operation, I am satisfied that
his claim is statute-barred as it is outside the time to bring a proceeding, even taking into account the postponement under s 28(b) of the Limitation Act 1950. It is now too late for Mr Mackenzie to bring a claim that would require an inquiry into events of some 27 years ago. It is quite unlikely that the defendant would be able to find witnesses who could give reliable accounts of what happened in Tauranga Hospital on 22 October 1987. The law has limitation periods to avoid just that sort of prejudice. His statement of claim is to be struck out as frivolous and vexatious.
[94] I shall extend the time to apply for a review of this decision to allow
Mr Mackenzie time in which to consider his options. [95] I make these orders:
(a) I strike out the statement of claim;
(b)I invite the parties to confer as to costs. If they cannot agree, the defendant is to file and serve a memorandum as to costs in 20 working days of this decision. Mr Mackenzie is to file and serve a memorandum in reply within a further 10 working days. I will decide costs on the papers. If no memoranda are filed within time, I shall take it that costs have been resolved and are not in issue.
(c) Under rule 2.3(2) of the High Court Rules, the time for applying for a review of this decision is extended to 20 working days from the date of this decision.
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Associate Judge Bell
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