Estate of Black v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 233 /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 THE ESTATE OF M C J BLACK Appellant (Appeal No. DCA 165/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 21st day of October 1998 APPEARANCE/COUNSEL N J Robinson for appellant J D Palmer for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to decline the appellant's claim for cover pursuant to s.81(1) of the Accident Rehabilitation and Compensation Insurance Act 1992. The background to the appeal is that the appellant committed suicide on 15 December 1996 at his place of work. The post-mortem examination identified the cause of death as "severe blood loss from multiple lacerations of the neck and both wrists". The Pathologist confirmed: 2 "In summary these multiple lacerations would all be consistent with the deceased having inflicted them on himself and the severity would suggest that he was at least temporary of unsound mind". Following the inquest the Coroner found: "Michael Campball James Black died on 15 December 1996 at Takaka as a result of being of an unsound mind at the time and committed suicide by causing severe multiple lacerations to his body." The appellant's estate applied to the respondent for cover under the Act which was declined pursuant to s.81(1)(b). The appellant applied for a review of that decision which was unsuccessful. The review officer followed the decision of this Court in IRB v ARCIC (42/98). It is against that decision which the appellant now appeals. The issue falls to be decided under s.81 of the Act which states: "(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 inflicts on himself or herself, or, with intent to injure himself or herself, causes to be inflicted 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." Ms Robinson submitted: 1. That s.81 (2) provides two alternative factors, being "mental injury" or "conduct of a kind described in s.8(3)". That provided either of these factors is shown then the exclusion in s.81 does not operate. 2. That while the decision of the Court in JRB is persuasive only, it was wrongly decided because the use of the word "or" in s.81(2) provides for two alternatives. That there is entitlement either where the suicide was the result of mental injury or where the suicide was the result of conduct of the kind described in s.8(3). She conceded that the second alternative was not available to this appellant. 3. That while the legislature does not refer to "mental injury" in s.81, it is separately defined in s.3 as "a clinical significant behavioural, psychological, or cognitive dysfunction". That it follows that it is a separate category from the mental or nervous shock referred to in s.8(3). That it could not have been intended that mental injury in s.81 is linked with s.8(3) as there is no reference to "mental injury" in s.8 (3 ) . 3 4. That there is no doubt from the Pathologist's report and the finding of the Coroner that Black was suffering a mental injury at the time of his suicide. Mr Palmer submitted: 1. That the decision in IRB was correct and should be followed. That s.81(2) limits the entitlement to cover to those persons who suffer personal injuries which are the result of mental injuries which have cover under the Act and is limited by s.8(3) to a mental injury which is the result of sexual abuse. 2. That while the use of the word "or" in s.81(2), provides two alternatives it does not establish what the descriptor "of a kind described in s.8(3)" relates to. That those words in fact govern both the words "mental injury" and "conduct" with the result that any choice must be between mental injury " of a kind described in s.8(3)" and conduct "of a kind described in s.8(3)" rather than, as the appellant submits, "mental injury" and " conduct of a kind described in s.8(3)". This Court adopted the same approach in IRB as Mr Palmer now submits is the correct approach. I do not consider that the wording of s.81(2) provides the alternative suggested by the appellant. As I suggested to Ms Robinson at the hearing if I accepted her argument then it would mean that in all cases where a suicide victim is found to be of unsound mind there would be an entitlement to cover. I do not consider that that was the intention of the legislature. I consider that the Act does not intend to cover all mental illnesses disease or injuries and that the provisions in s.81(2) provide a limiting type of mental injury which may result in cover and that is mental injury which arises as a result of sexual offending. Accordingly, I confirm that the factual situation in IRB is very similar to the factual situation in this case and that the interpretation applied by the Court in IRB also applies in respect of this appeal which is dismissed. DATED at WELLINGTON this 11 th day of November 1998 A W Middleton District Court Judge dcal6598.doc(rd)