IRB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 42/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JRB Appellant (Appeal No. DCA 267/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS There will be an order that no details which will lead to the identity to the appellant are to be published. I have received submissions from the appellant and from Mr S Condie, counsel for the respondent, with the request that I issue a decision on the papers. The issue in this appeal is whether the appellant is entitled to cover under section 81 of the Accident Rehabilitation and Compensation Insurance Act 1992 The appellant, who was aged 16 at the time, attempted to commit suicide by shooting herself in the abdomen in July 1992. She subsequently lodged a claim with the respondent in October 1992 stating that she suffered injuries from a gunshot wound to the abdomen and had surgical scars and an infected wound following surgery. Initially the claim was accepted by the respondent but when the appellant applied for an entitlement to weekly compensation the respondent requested further medical information regarding the claim. The respondent then became aware that the injury was the result of a suicide attempt. On 13 December 1996 the respondent notified the 2 appellant that her claim was declined under section 81 of the Act. The appellant applied for a review of that decision. The appellant gave evidence before the Review Officer in which she stated, inter alia: "At the time, I wanted to die, that was what it was right up until, what was it, it was about three or four days probably beforehand, until I did it and then it probably wasn't until after an hour that I did it when I was still lying on my bed alive in dreadful pain that I though oooh, this isn't going to work and then I was trying to help myself to live, trying to get out of the room and what-not but there was (inaudible) pain so year, just the thoughts in there at the time were just of death (inaudible)." The Review Officer held on the basis of the appellant's own evidence and the medical evidence available to her that the decision of the respondent was correct. The Review Officer found that the appellant had suffered injuries which were wilfully self-inflicted and was therefore not entitled to cover. The appellant lodged an appeal against that decision but has limited the grounds of appeal to the submission that she was entitled to cover under section 81(2) of the Act, in that the personal injury was sustained as a result of a mental injury in that she suffered from a mental illness prior to the injury. Mr Condie submitted that while the Review Officer did not refer in particular to section 81(2), the appellant cannot be entitled to cover under that section because it refers specifically to persons who have sustained personal injury or mental injuries that are a result of conduct of a kind described in section 8(3) of the Act. Mr Condie submitted that section 81(2) does not extend to wilfully self-inflicted personal injuries that result from mental injury but is restricted to those wilfully self-inflicted personal injuries that result from mental injuries covered by the Act. Section 81 states: "81. Wilfully self-inflicted personal injuries and suicide---(1) No compensation, grant, allowance, or rehabilitation shall be payable or provided under this Act in respect of-- (a) Any personal injury that a person wilfully inflects on himself or herself, or, with intent to injure himself or herself, causes to be inflected upon himself or herself, or death resulting therefrom; or (b) The death of any person where the death was due to suicide. (2) Nothing in this section shall affect the entitlement of any person where the personal injury or suicide was the result of mental injury or conduct of a kind described in section 8(3) of this Act." The offences referred to in section 8(3)(a) are the offences of sexual violation in the nature of offences against the person constituting sexual abuse. Section 3 of the Act defines "mental injury" as "a clinically significant behavioural, psychological, or cognitive dysfunction." 3 When the respondent investigated the appellant's claim it received a copy of a report from the local area health board, completed by a senior Social Worker in the Psychiatric Emergency Services and a Charge Nurse in the same service. In so far as it applies to this decision, that report of 18 August 1992, which was directed to the appellant's doctor states: "JRB has been seen by the Psychiatric Emergency Service on a number of occasions subsequent to her having been admitted to Hospital with self-inflicted gun-shot injuries to her abdomen. She has had injuries to her kidney, liver, muscles to her back, and bowel and had major surgery of which I will not go into here. On assessment, JRB stated she had felt suicidal for 2-3 days prior to her attempt. She had thought about hanging herself and had come home on Monday with the idea of hanging herself. She stated she spent most of Monday morning trying to work out how to do it and then had decided to shoot herself. She knew there was a gun in her parents bedroom. She went out to her sleepout and was there for a number of hours trying to work out how to do it and stop herself thinking about what it would be like and how painful it would be. She stated she made several attempts to pull the trigger but was unable and decided to make one final attempt which succeeded. JRB was at home alone, had told no-one of her intent. She was found by her stepfather who came home earlier than expected. She had made a number of efforts to get out of the sleepout which she had locked but was unable to because of her injuries. Currently, JRB is pleased to be alive. She states she doesn't understand why she did it and "its like a dream that its happened". On the Sunday night prior to her attempt, she stated she had planned to cut her wrists and take pain killers and at this time took a number of pain killers but was unable to remember what they were. She told no-one of this." Subsequently the respondent obtained a further report from the Community Mental Health Service which was prepared by a Clinical Psychologist and a Consultant Psychiatrist and notes that the appellant had been under the care of that service between 19 July 1993 and 13 March 1995. The report which is dated 5 March 1997 states: "Prior to East Sector involvement and consequent upon her suicide attempt in July 1992, JRB had received regular psychiatric follow up from the Psychiatric Emergency Service at Hospital. Her diagnosis, although she was clearly suicidal, was not immediately clear. With time it became clear that JRB had extreme difficulty identifying and expressing her thoughts and feelings. Although she was distressed she was unable to communicate what was behind this distress. In February 1993, an assessment was requested from Dr Brian Craig, Specialist Psychiatrist for young people, who concluded that JRB had been suffering from an underlying depressive disorder. Accordingly JRB was treated with anti- depressants and, in view of her continuing vulnerability to mood change and the intractable nature of her symptoms, she was referred to the East Sector Adult Psychiatric Service. 4 Assessment by the East Sector Team confirmed the view that JRB had been suffering from a chronic intractable depression since adolescence. With intensive psychological intervention involving both JRB and her family and with appropriate psychiatric medication, her depression began lifting and her suicidal ideation became less intense as she started learning the skills she needed to make changes in her life." It seems clear from the medical evidence and the appellant's own evidence that she intended to commit suicide but the attempt was unsuccessful. It follows from that that by virtue of section 81(1) the finding of the Review Officer was correct. The appellant now asks the Court to invoke the provisions of section 81(2) in her favour. I consider that section 81(2) limits the entitlement to cover only to those persons who suffer personal injuries which are the result of mental injuries arising out of personal injury which has cover under the Act. The type of mental injury which has cover under the Act is limited by section 8(3) to mental injuries which are the result of sexual abuse. The issue is not the simple issue which the appellant submits. While it is clear from the medical reports that she has suffered chronic intractable depression from adolescence, that is not a mental injury of the type described in section 8(3) I consider therefore that section 81(2) has no application so far as this appellant's claim is concerned. I consider that on the basis of all the evidence, the finding of the Review Officer was correct that at the time she suffered the injury she was not suffering a mental injury of the type referred to in section 8(3) and that it was wilfully self-inflicted with the intention of killing herself. The appeal is dismissed. DATED at WELLINGTON this 18th day of March 1998 A W Middleton District Court Judge dc267-97.doc (nr)