Hainsworth t/a Goldilocks Hair Salon v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 265 198 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JO-ANN HAINSWORTH t/a GOLDILOCKS HAIR SALON DCA 90/ 98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of November 1998 APPEARANCES: Mrs A Grey counsel for appellant Ms L Rice counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the claimant, Christine Hendry, suffered a back injury from a fall at work and that her injury was thereby a work injury. 2 It should be noted that the claimant Christine Hendry did not appear at the hearing of this appeal, advising that she had employment commitments which prevented her from appearing. However, she had presented written submissions to the Court and had also produced statements from various witnesses both in support of her claim and in rebuttal of statements made by and on behalf of the appellant and she can be said to have participated fully in the appeal process save for her appearance at the hearing itself. Leave was given to the appellant and the claimant to have various witness statements produced as evidence. Leave being granted in the interests of justice so that the parties be given every opportunity to present their respective cases, particularly in view of the fact that the issue was one of fact and required findings of credibility as the claimant and the appellant were each contending that the other was not telling the truth. BACKGROUND In 1996 the claimant Christine Hendry was employed as a hairdresser by the appellant at her hairdressing salon which carried on business under the name of Goldilocks Hairdressing Salon. At the material time the claimant was 47 years of age. By a claim form dated 26 November 1996, the claimant sought cover for a back strain which she said had occurred on the 22nd of November 1996 when "She slipped in water on floor at work." The claim form shows that she first consulted her GP, Dr Bailey, on 26 November 1996. He recommended a course of physio treatment. The Corporation treated the claim as a work injury claim thereupon sent out a work injury report to be completed by the employer. That report required the employer to confirm or not accept that the injury was a work injury. 3 The appellant duly returned that work injury report advising that she did not accept that it was a work injury and provided a full page of reasons why. The reason given by the appellant at that time was that the only information she had of a back injury to the claimant was that relayed by the claimant's partner who had telephoned to advise that the claimant would not be able to be at work on Monday, 25 November 1996 because she had hurt her back in the shower and was in great pain. As a result of circumstances which are not relevant to this appeal the claimant's employment with the appellant ceased and she did not ever return to work for the appellant. As a consequence of the contention by the appellant that it was not a work injury the Corporation wrote to the claimant on 13 December 1996 seeking full particulars of the circumstances of the injury and statements from any witnesses which might be able to verify the circumstances of the accident. In her statement of explanation to the Corporation the claimant stated: "Everything in the letter from Jo-Ann Hainsworth is a blatant lie and is trying to turn everything around on me. On Friday, 22 November 1996 at approx 10.25 a.m. I was at my place at work (Goldilocks). I was cleaning up the salon. I was at the basin when I slipped in a pool of water on the floor. It was at this time I wrenched my back and neck which caused me sudden pain in the lower back. I managed to save myself from falling by grabbing the small wall the dryers are on. At this time Jo-Ann was not in the salon as she was out on business as she has done many times before. I remember this as I took a phone message from Jo-Ann's husband prior to the accident. It was when I got off the phone heading back to the basin area to finish off cleaning up that I slipped in a pool of water on the floor hurting myself. I made my way to the back of the salon and sat down as I was experiencing an uncomfortable pain in the lower back. I rested and waited for my next client who was coming in for a set. My client Mrs Lusty arrived and I started to shampoo her hair. It 4 was in the middle of shampooing Mrs Lusty's hair that Jo-Ann arrived back. I had not mentioned anything to the client as it is most unprofessional to burden elderly clients. I then asked Jo-Ann if she could set up Mrs Lusty's hair, Jo- Ann appeared to be upset this is quite out of character for me to ask Jo-Ann my boss to do anything. While I was standing shampooing the back pain became quite uncomfortable. Jo-Ann did not hesitate to attend to Mrs Lusty. Jo-Ann never asked why. She had to set Mrs Lusty's hair, I never mentioned my back to her as I have stated when she arrived back she was upset and unapproachable as she had been many times in the past and is a very moody person. While Jo-Ann set Mrs Lusty's hair I made my way to the back of the salon again to rest my back. I had been sitting for about 5 minutes when she dismissed me for lunch. The time was 1 1.45 am normally my lunch hour is 12.00 to 1.00 pm. I came home and as I struggled to get out of the car Victoria Fisher, my neighbour came over to talk to me it was then I told Victoria that I had hurt my back at work that morning by slipping in water by the basin. My neighbour can verify this. I came inside and laid down on the couch. After resting I returned to work. I felt a bit better but was still uncomfortable. Having a sole hairdressing position I felt obligated to the clients that were booked in. At 4.00 p.m. the salon closed and Jo-Ann and I left together. I was glad to finish early as the pain was still there. Jo-Ann states that I had left first. This is a lie. When I arrived home I rang Robert, my fiancee, at work and told him to find his own way home because I was not feeling well. I felt awful as it was raining and Robert would get wet on his bike. I told him I was going to bed. Robert and Rochelle arrived home to find me in bed. I stayed in bed until the next morning when I got up to have a shower. While I was in the shower I decided to wash my hair, I turned to get the shampoo and an amazing pain grabbed me in the lower back. I let out an almighty scream and Robert came running and helped me out of the shower and put me back in bed. I told Robert to ring Jo-Ann. This was Saturday morning to tell her that I wouldn't be at work on Monday. I don't know what Robert said as I was in bed. I spent Sunday in bed as I could not walk. Robert was very concerned at the amount of pain I was in and he tried to find someone to give me a massage but there was no one available. ... On Monday Jo-Ann rang me and told me to go to the Doctor. I stated that I was in too much pain to go at present that I couldn't drive and Robert was unable to take me due to his work load. I told her that I hoped the massage would help and that tiger balm worked wonders at times. It was on the Monday that I told Jo- Ann how I had hurt my back on the Friday. My exact words then were "I must have weakened something". She replied "Yes you could have". Jo-Ann in her statement has lied again about what she said. I finally managed to get to the Doctor on 25 November. I told the doctor what had happened on 2and and asked about the terrible delayed pain. The doctor explained that with back injury this is most common. She gave me a prescription Voltaren to take the obvious swelling away and that physiotherapy would be necessary for the back to heal. At this stage doctor said it was wise to have rested those days before seeing her as physio would have been impossible and that now I could start light physio. I rang Jo-Ann after returning from the doctor. I told her what the doctor had said and that I would be off work for about a week but that ACC would cover it so not to worry. I told her she was only responsible for the first week. She immediately began to yell down the phone and that she would not be paying anything. I asked why she said you have no proof that it happened at work and you didn't tell me. I said Jo-Ann I told you as soon as I could. Jo-Ann just kept yelling and slammed the phone down. Her awful attitude really upset me." The remainder of the statement is to do with the circumstances of the termination of her employment. Attached to that statement was statement from the claimant's partner, Robert Moore, stating that she phoned him at work to say that she had hurt her back and would not be able to pick him up from work. When he got home from work he found her in bed in 6 considerable pain. He went on to confirm the circumstances of the incident in the shower. There was also a statement from the claimant's daughter Rochelle to say that she arrived home from work on Friday, 22 November 1996 to find her mother in bed and she was told by her mother that she had hurt her back in a fall at work. Finally, there was a statement from the claimant's neighbour Victoria Fisher who stated that she was working in her garden when the claimant came home at lunch time. Mrs Fisher said she appeared to be limping and in pain. She asked what had happened and the claimant told her she had slipped in a pool of water on the salon floor and had fallen and hurt her back. She went on to say that they then discussed an upcoming operation that she, Mrs Fisher, was due to have and that it is because of this that she is certain of the contents of that conversation. Because there was some doubt about the injury and whether it may have been suffered, particularly in the light of the claimant's own statement that she suffered pain when twisting in the shower, opinion was sought from Mr B J Thorn, Orthopaedic Surgeon, to determine whether the injury she was suffering from was consistent with the accident which had been described, that is the fall at work. Mr Thorn reported on 11 June 1997 and he advised that he diagnosed low back and leg pain with some secondary neck pain. He stated she had a pre-existing degenerative change in the lumbar spine which he considered had been aggravated by her fall. He stated her symptoms were mechanical in type consistent with this diagnosis. He stated the cause of her injury was as stated, that is, a fall on a wet floor and her current presentation was consistent with the injury as described. As a consequence of that report the appellant was advised that the Corporation had determined that the injury of the claimant was to be classified as a work injury and 7 that her claim would be attributed to Goldilocks Hair Salon for the purposes of experience rating. The appellant sought a review of that decision. At the review hearing two statements were provided in support of the appellant. The first of these statement was from a Mrs Wellington who stated that at approximately 3.10 p.m. she was at Goldilocks Hair Salon to have her son Joshua's hair cut. She said she did not notice any anything on the floor or see anyone mop water up from the floor. At no time did she hear Christine Hendry complain of a sore back or notice that she had a sore back. The second statement was from Mrs Lusty, who said that she had an appointment on 22 November at 11.00 am. She said both Jo-Ann were in the Salon and she did not notice anything out of the ordinary. She did not notice any water on the floor and no mention was made of any water on the floor. She did not notice anything wrong with Christine's back. At no time was it mentioned to her, or did she notice that the claimant had slipped or that she was suffering from any discomfort. Both the appellant and the claimant gave evidence at the review hearing. It was the claimant's statement that she had not left the salon that morning. She said she may have spent some time in the back room but she had not left the premises. This evidence was contrary to that which was given by the claimant who said that the two had had "words" in connection with the claimant telling her that she was no longer interested in purchasing the business and it was that which caused the appellant to leave the premises in a state of annoyance. The transcript of evidence of the review hearing occupies some 46 pages and one of the other matters debated at length was the issue of whether or not water could leak from the basins on to the floor. It was the claimant's contention that the plumbing was less than satisfactory and basins had been leaking for some little time. The 8 appellant said the plumbing had been done by her husband who was suitably competent and that there were no leaks. It does however seemed to be common ground that from time to time water may splash from the basins on to the floor. The Review Officer in her decision stated: "Much of the information was contradictory between the parties. Both parties have a different version of the events. Obviously issues of creditability arise in dispute such as this when it is a case of one person's word against another. A weighing exercise of the evidence must be done. Much contradictory evidence has been given as to whether there was a water leakage and whether Mrs Hendry slipped due to that leakage. The other issue is whether the incapacity was caused by the Friday accident at work or the incident in the shower at home. The issue of any ongoing capacity has been questioned. The evidence that an accident occurred was relayed in detail and was corroborated by a neighbour, Mrs Hendry's daughter and fiancee confirming back pain on 22 November 1996. This evidence was presented in an affirmative manner as to what actually happened. The support of evidence for Mrs Hainsworth was based on factors that the clients did not notice, such as a pool of water and Mrs Hendry's discomfort. Mrs Hendry has little incentive or motive (loss of a week's wages) for this to be classified as a work injury as she would have been entitled to cover for her accident had it occurred out of work. According to Mrs Hainsworth there was no ill feeling before the accident. However there seems to have been some arrangement between the parties to buy and sell the saloon which had not gone well. Mrs Hainsworth did not deny this. 9 Looking at the totality of the evidence I am persuaded that a work injury did occur on 22 November 1996. I note that an exacerbation may have occurred the following day in the shower." For the purposes of appeal to this Court the appellant sought leave to introduce further evidence but in fact some of the evidence sought to be introduced had already been produced to the Review Officer but that now the statements by Mrs Wellington and Mrs Lusty were provided in affidavit form. The only additional feature about Mrs Wellington's evidence was that she stated that she was a trained remedial and sports masseuse and that she was used to assessing people and noticing if they show signs of injury. She said that she did not notice anything about the claimant which would indicate she was suffering any pain or that she had hurt herself. There was also an affidavit from the appellant's husband who stated that he did not phone his wife at the salon on the Friday morning. He stated he is a trawlerman engineer and that on that day he was at sea for the whole day. He also stated that it was he who had done the plumbing for the basins when they were shifted to their present location. He said there were no leaks. He said that his engineer's tickets qualified him to do engineering, welding and plumbing work and that he was competent to do the work that he had done. In relation to certain passages of the transcript of evidence given by the claimant as to his wife's mood swings, rages, etc. he said that those statements were untrue and that his wife never behaves like that. There is also a lengthy affidavit from the appellant which simply seeks to repeat and/or refute the various statements that were made by she and the claimant at the review hearing. There were other points of difference between the parties given in statements made on each behalf on peripheral issues such as whether it was raining when the claimant left 10 the salon in the afternoon and whether she left at the same time as the appellant or not. Furthermore, there was character evidence given on behalf of both parties. Mrs Grey, counsel for the appellant, submitted that in the course of the many statements which the claimant made or is reported to have made about the circumstances of the fall at work there are inconsistencies in her description of how it occurred and that these inconsistencies indicate that she, the claimant, was not telling the truth. She further submitted that the various statements attributed to the claimant as to the water on the floor and how often water was found on the floor were suspect. She submitted that with the claimant's twenty years experience as a hairdresser she would be likely to have complained about this unsafe working environment if indeed it had been so. Counsel submitted that the inconsistency in statements indicated fabrication or improbability. Ms Rice, counsel for the respondent, submitted that, contrary to the appellant's contention, the claimant's description of the fall is consistent. She may have used different words at various times but each conveys the same meaning. She further submitted that this indicates that her complaint was not rehearsed. Counsel further submitted that the evidence at the review hearing indicated that the appellant acknowledged that there was often water on the floor and that any statements made by Mrs Lusty really do not take the matter any where. She further submitted that it was quite reasonable for the claimant in the first instance not to make comment about the injury and it was not until there was the further exacerbation with the shower incident that it needed addressing by notifying the employer. 11 Counsel noted that there were underlying difficulties between the parties at the time of this accident which tended to polarise the positions of the parties. Counsel submitted that the Review Officer was aware of the two conflicting stories and made special note of the manner and way that the parties gave their evidence. The Review Officer has made a finding and there is nothing in the evidence which this Court has received subsequently which would entitle it to interfere with that finding. In the words of the modern idiom no "smoking gun" has been produced which would damage the claimant's testimony. DECISION The issue for determination is whether the Review Officer was correct to find, as she did, on the balance of probabilities that the claimant did suffer a fall at her place of employment, and in that fall injured her back. To say that a substantial amount of heat has been generated in the determination of this issue is an under statement. It must also be said that very little light has been shed in the course of that heat. Looking at the matter in abstract it must be noted that slipping on a tiled floor in a puddle of water is a perfectly believable type of accident. Furthermore, the evidence was that the nature of the tiles being black and white would indicate that a pool of water might be hard to see. Thus, the type of accident which the claimant says she suffered is one which is perfectly understandable and could have happened. The evidence is that she suffered some immediate discomfort but had recovered sufficiently by the time Mrs Lusty came in at 11.00 o'clock for her regular appointment. It is true that she has said nothing of her fall to the appellant, and one would not expect her to have said anything to her client. The background evidence makes it quite clear that there were feelings of tension between the appellant and the claimant at this particular time. 12 The appellant says she did not go out of the salon that morning, the claimant says she did or indeed she was not present when the fall took place. The appellant has said she could have been in a room at the back and so wherever she was there was a time when she was not in the salon itself. There were no clients at the time and therefore no reason for her to be actually in the salon. The appellant's husband said he did not phone his wife that morning because he was at sea. The claimant says that it was a telephone call from Mr Hainsworth that she took just before returning to her cleaning of the workbench when she slipped. It is difficult to resolve this issue but I find that it is not fundamental. It may be that the claimant answered another phone call and confused it, when reconstructing the situation some three weeks later, when it was first mentioned in her letter of explanation to the ACC officer who requested full details. It may have been that she recalled a phone call the day before when Mr Hainsworth had phoned and confused that phone call with another phone call that she took on the day of the slip. I do not find that because there is a question mark over who the phone call was from, that it renders her statement about the fall suspect. The fact of a phone call was not a piece of the jigsaw which was necessary if one was fabricating a story. The evidence given by the claimant's neighbour, Mrs Fisher, and that of the claimant's daughter, Rochelle, I find is significant and that even though it cannot be regarded as corroboration in the legal sense, it nevertheless forms part of the res gestae. I find that this type of evidence is similar to that of complaint evidence in criminal law. Such evidence is not to be taken as proving the acts complained of but only as a matter to be borne in mind by the Tribunal of fact in considering the consistency, and therefore the credibility, of the complainant's story. This Court sitting in this appellate jurisdiction is entitled to receive such evidence, whether or not that evidence would be otherwise admissible in a Court of Law, and it is evidence such as that given by Mrs Fisher and the complainant's daughter which 13 falls into that discretionary category and which is allied to the complaint type evidence received in sexual cases. Having regard to that evidence there is the statement made by the claimant to Mrs Fisher and then subsequently to her daughter as to the circumstances of her back injury and those statements are consistent with the statements she has made subsequently about the fall at work after slipping on some water. Furthermore, I take cognisance of the fact that the claimant was quite candid in giving full details of the subsequent incident in the shower and of how that event caused her pain and discomfort. If for example her back injury had been caused solely by the shower incident and nothing had occurred at work previously, then it is hardly likely that the claimant would mention the shower incident at all but simply maintain that her injury was caused solely by the fall at work. There is simply no sense at all in her making mention of the shower incident if she had an intention of claiming a work injury by fabricating the same. As was submitted by counsel for the respondent, it is to be noted that the statements made by the claimant and those confirming her statements were all made within a short time of the accident occurring whereas the statements of various witnesses produced by the appellant were all provided some months, and even years, after the incident occurred. These later statements must be considered with that in mind. This Court must also take cognisance of the fact that the Review Officer was well aware of the contentious issue between the claimant and the appellant and after hearing each of them give their evidence she has come to the view that the claimant was telling the truth and she so found that the claimant had suffered the injury by a fall at work. This Court has not been provided with any testimony which would entitle it to interfere with that assessment of credibility made by the Review Officer. The onus is 14 on the appellant to establish on the balance of probabilities that the decision of the Review Officer was wrong. On the evidence before the Review Officer I find she was well entitled to make the decision she did and therefore in terms of the shifting onus that is referred to in the South Pacific Tyres Decision 1BACK 331, the onus thereupon shifts to the appellant to establish on balance that that decision was wrong. Having found that I have that there is no evidence which would establish that the decision of the Review Officer was wrong, it must therefore follow that the appellant has not discharged the onus which is upon her. Accordingly, I find that the Review Officer's decision was correct and this appeal is therefore dismissed. DATED at WELLINGTON this toth day of December 1998 MJ Beattie District Court Judge Hainsworth.doc(gm)