Weston v Accident Rehabilitation and Compensation Insurance Corporation

Decision No: 47 194 IN THE DISTRICT COURT DCA No. 149/93 HELD AT AUCKLAND UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND (19-93-1637 IN THE MA TIER of an appeal pursuant to Section 91 of the Act BETWEEN LESLEY FRANCES WESTON APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 17 August 1994 Date of Decision: \ 5 Se.p te-wd e.✓ 1°19 4 b Counsel: M.K. Headifen for appellant Pauline J. Zumbach for respondent RESERVED DECISION OF JUDGE R.L. KERR Background to the appeal: On 13 November 1992 Mrs Weston went skiing with members of her family. She used a sun screen product to guard against sunburn. Unfortunately, the product, a sample of which she had obtained from her 2. husband who worked with a supermarket chain trialling it, was defective in that the active sun ingredient was missing from the product. The appellant sustained a severe sunburn. On 24 November, Mrs Wes ton lodged a claim with the Corporation but on 26 November, the Corporation advised Mrs Weston that from the information provided it had decided that cover did not exist. Mrs Weston applied for a review of the Corporation's decision. On 23 September 1993, the Review Officer issued his decision and applied sections 3, 4 and 8 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the Act). The Review Officer concluded:- "It is of course apparent that the lack of the sun screen factor in the product which the applicant used has caused her personal injury but she can only have cover if she comes within the provisions of subsection (8)(a) in that it has to be caused by an accident. For it to have been caused by an accident, because the personal injury arose from exposure to the elements, then it must come within the defined period of time not exceeding one month and must also cause disability that lasts for a continuous period which exceeds one month. There is no doubt that the personal injury caused by exposure to the elements arose within a defined period of time that did not exceed one month but having regard to the evidence I do not consider that the applicant has had a disability that extended for a continuous period exceeding one month and therefore in my opinion she does not have cover under the Act." Primarily therefore, the determination of this appeal, depends on whether or not the Review Officer made appropriate findings of fact or drew proper inferences from that which he was told Mrs Weston at the review. 3. The Jaw: Before coming to the facts, it is necessary to consider the question of the Corporation's liability. Section 8 of the Act specifies that cover under the Act is to extend to personal injury which is caused by an accident to the person concerned. Section 4 of the Act defines personal injury as meamng (inter alia) physical injuries to a person. Section 3 of the Act defines accident for the purposes of this appeal as:- "Any exposure to the elements or extremes of temperature or environment within a defined period of time not exceeding one· month that causes disability that lasts for a continuous period exceeding one month or death." Section 3 also defines disability, which word means:- 11 Any restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the , range considered normal for a person. 11 The issue for determination is whether or not Mrs Weston had a disability that lasted for a continuous period exceeding one month. 4. In considering that, I have to decide whether Mrs Weston suffered any restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the range considered normal for a person. In looking at the meaning of disability it seems to me the language is such, that I must consider the matter objectively, and not from Mrs Weston's point of view. The reason I conclude that, derives from the words:- "In the manner or within the range considered normal for a person." If the legislature, had intended a disability to be assessed from an injured person's point of view, then it seems likely that for the words "a person" they would have substituted the words "the injured person". The use of the words "considered normal", also suggests an objective test as opposed to a subjective one. The facts: In dealing with the facts, I acknowledge at once, that the Review Officer saw, discussed and heard what Mrs Weston said after she had taken an affirmation, and in that sense, he is better able than I to assess credibility, find facts and draw inferences. However, although that is the case, it seems to me necessary to proceed through the transcript of evidence and what Mrs Weston had to say. 5. There was an initial discussion between Mrs Weston and the Review Officer, as to what it was the Corporation had done. At pages 3 and 4 of the transcript this is recorded:- "Mrs Weston: Yes. The sun screen we'll call it a sun screen obviously it wasn't but the sun screen was actually provided to Foodtown Supermarkets as a sales sample by General Pharmaceuticals because they wished to sell a product through the supermarkets. It is Foodtown's policy that staff evaluate any sales samples and as such staff are able to use that for a testing purpose. Being married to a Foodtown employee I was given the sample to take with me when I went skiing with my two boys. It was a very sunny day and we applied the sun screen every hour because we're aware of the risks of the snow and the sun together. One of my sons used the same product, the Solar Shield that we' re talking about and my other son used something else that we had at home that was of course a valid sun screen product. At the end of the day the one that used the _ stuff from home was fully protected, whereas both my younger son and myself started to get quite severe stinging of the skin which swelled up and became very red overnight. Consequently we did not go skiing the next day. On the Monday, I think it was, this happened on the Friday 13, on the Monday I started to get a very hard lump forming under the skin and went to the doctors where the medical report that you have in your file was produced and I had antibiotics and medical treatment for it. It developed into a very severe burn weeping, very messy for a period of three weeks." Mrs Weston then asked the Review Officer if he wanted her to go further and he responded that he did. At p.5 this among other things, was recorded:- "Mrs Weston: I do. Okay, the as I say the actual injury, the scab itself came off about one month after the date of injury. 6. Mr Weir: Can you be more precise? Mrs Weston: I can't be precise as to the exact date, no. Mr Weir: It's important. Mrs Weston: Is it? When the scab fell off, I don't have the date I did not write it down, I did not think that was important." The There was then a discussion concerning a diary or something resembling a diary kept by Mrs Weston. That discussion was indecisive and then this was recorded:- "Mr Weir: The scab three weeks after the injury. Mrs Weston: Yes. Okay right. Mr Weir: After the episode. Mrs Weston: After the date yes, 13th November, that date I've got very firmly in my mind but the actual date when the scab came off it's just three weeks that I've indicated here." Continuing at p.6:- "Mr Weir: Three weeks, it's very important. Mrs Weston: Okay, I mean that's as close as I can get it, it's what I've written here. I haven't written it down in an actual date diary. Mr Weir: After that what happened? 7. Mrs Weston: After that, the scar for want of a better word, I don't know whether that's medically correct but there was a . very red mark on my face, very tender. Mr Weir: Scar or blemish? Mrs Weston: Yes, crinkled skin, you know very dry, remained and gradually went back to being a normal sort of skin. However, the redness mark is still with me today and that gives severe irritation if I go out in the skin (sun), even with sun block on I cannot go out in the skin (sun), sailing or skiing for instance without making sure I have very heavy sun block or some actual block on it and that is ten months now after the injury, so my belief is that what I have now is what I am going to be stuck with. Which is basically, is there anything else I can say? I'm not very good at putting words together here. There is of course increased risk of melanoma." At p. 7 this is recorded:- "Mrs Weston: It was extremely detrimental to my work, being a trainer. I had to avoid I don't have any time lost through work as far as loss of wages were concerned but certainly it was very detrimental to my career at that stage with not being able to fulfil certain obligations because of the mess. Mr Weir: For how long? Mrs Weston: For about the month it took, the three weeks that the scab was there, it looked absolutely horrific and even after it you know when the scab fell off it was quite unsightly. It was a good month before I could wear make up again and I didn I t use to really wear make up very much at all. Now I'm really having to pile on just to hide what is there. Is there anything else you can think of I can tell you? 8. Mr Weir: Can you tell me in any way this has affected your ability to perform something, in a manner which you previously performed it or withm the range that was normal for you? Mrs Weston: No I'm certainly able to perform in the same way as I used to be able to, it's really just a confidence thing, you know particularly when you had good skin originally, it's quite a shock ... " Mrs Wes ton indicated that the three weeks with the scab she wasn't able to sleep particularly well and then at p.8:- "Mr Weir: You don't have a lack of ability to perform any activity in the manner or the range that you used to do before? Mrs Weston: Only to the point of view that I will try and spend less time out in the sun, so I'm not able to do the sports that I love to the same extent because of the irritation that the sun will now cause. I'm also a qualified sailing instructor so that is quite important from that point of view too. Mr Weir: Are you still sailing ... Mrs Weston: Yeah, I still sail but as I say I have to be more particular about cutting things short if it's an excessively sunny day. You can only go so far with sun screens and hats to protect yourself. At a certain stage you've just got to, I mean I can't stay out any more. A general discussion then ensued and at p.12 this is recorded:- "Mr Weir: I'm going to have to look at it because clearly you say to me that the injury as close as you can get it came off the (sic) it sort of cleared up after three weeks. 9. Mrs Weston: Well the scab came off. I mean you can imagine it was still pretty red and raw for a long time after that and Mr Weir: Did it stop you doing your normal activities? Mrs Weston: It didn't stop me working, no. It stopped me from being confident in working but you know a few months there. Mr Weir: Well is that a disability, I'm not sure. Mrs Weston: And as I say I still am restricted as far as being out in the sun is concerned a lot more restricted than I usually (to be). Mr Weir: Or has it simply made you go up a bit in the sun blocks? Mrs Weston: It's made me go up a bit in sun blocks and be wearing hats all the time but it's actually prevented me from actually going out." At p.13 this is recorded:- " ... I mean you don't know (go) skiing Mrs Weston: I have not been skiing since then no and I would be very wary. Mr Weir: Have you always been skiing? Mrs Weston: I have ski'd since I was a teenager yes. . .. Mrs Weston: But yes I will be very wary when I go skiing again next, I think I'll leave it this year because I think you know the effects can be a little bit severe. I might give it a go 10. next year and just see how I fair (fare) and do half a day with white stuff all over my face." There seems to be no dispute as far as the Corporation is concerned, that Mrs Weston suffered severe sun bum while skiing, on Friday 13 November. It is also not disputed, that Mrs Weston was exposed to the sun within the defined period of one day (which does not exceed one month). However, the Corporation very much disputes that Mrs Weston sustained a disability lasting for a continuous period of one month. I note, in relation to the scab caused by the bum, that initially, Mrs Weston said the scab itself came off about one month after the date of IIlJUry. She accepted she did not write down the date; there is a discussion concerning a diary; and the Review Officer then puts the question:- "The scab three weeks after the injury." From there on, as far as the scab is concerned, Mrs Weston seems to accept, that it fell off, three weeks after the injury. I note a letter apparently signed by Mrs Weston on the Corporation file dated 11 January 1993 which says among other things:- " However, the mJury suffered by me has been extremely painful, the initial burn took three weeks to dry up and scab, and now (eight weeks later) the scar is still obvious needing a good make up base to hide it. The area is extremely sensitive, 11. particularly to the sun even usmg adequate sun screen and constantly wearing a hat." Attached to that letter of 11 January, there is a document headed "Details relating to proposed case against General Pharmaceuticals". That also seems to be signed by Mrs Weston. There is a paragraph in that document which says:- "After three weeks the injury had dried, and the scab finally came off. I have kept a diary as to the effects to date. The remains of the injury is still apparent, although not obvious with adequate make up applied (I have never been a heavy user of make up, preferring to and being lucky enough, up until now, to go without for non formal occasions)." I infer, that the Review Officer had the two documents which I have referred to before him, when Mrs Weston appeared at the review. Accordingly, it seems that the scab fell off, three weeks after the accident. The question to be answered though, is whether or not Mrs Weston continued to suffer from a disability. These things seem to be clear:- 1. Prior to the bum Mrs Weston was not obliged to use heavy make up. 2. Following the burn, and subsequent to the scar falling off, Mrs Weston has been obliged to use heavier make up. 3. Mrs Weston has not been skiing since the burn. 12. 4. Mrs Weston considers that she is unable to undertake sailing without wearing a hat and the-necessary sun block. 5. She cannot remain in the sun as long as she used to. 6. Further, Mrs Weston has to take greater precautions as far as protecting herself from the sun is concerned. I have indicated that in determining whether or not Mrs Weston was suffering from a disability for a month, has to be judged objectively. However, in judging it objectively, it is necessary to have regard to the various things which Mrs Weston says she was able to do prior to the burning. It is then necessary to decide if a person with Mrs Weston's skin type, and interests, from an objective point of view, would be caused a disability from which that person would be restricted or lacking as a result of impairment of ability to perform an activity within the range considered normal for a person, with Mrs Weston's characteristics. I conclude that such a person would be restricted or lacking as a result of impairment of ability to perform an activity. In my view therefore, Mrs Weston's restrictions as far as skiing;· sailing; make up and the other matters I have detailed, meet the test of disability and that disability is for a greater period than one month. 13. ·conclusion: For the reasons I have outlined, in my view, the Review Officer was incorrect in assessing the period of disability at three weeks. He failed to take into account sufficiently, the way in which the bum has restricted Mrs Weston. I therefore allow the appeal. I allow costs to the appellant in the sum of $700. (R.L. Kerr) District Court Judge