Estate of Black v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY Decision No. /30 / 2000 (DCA 168/99) UNDER the Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEE The Estate of NIGEL JOHN BLACK Appellant AND ACCIDENT REHABILIATION & COMPENSATION INSURANCE CORPORATION Respondent Heard at AUCKLAND on 25 November 1999 Date of Decision: 7" June 2000 Counsel Mr G N Bradford for appellant Mr D Tui for respondent DECISION OF JUDGE P F BARBER The Issue 1 . The issue is whether compensation is payable to the appellant estate regarding the death of the late Mr N J Black. Background Mr Black died by hanging on 29 November 1996. An inquest hearing was conducted before the Thames Coroner in June 1997 and the Coroner's finding reads (inter alia): "I therefore find that Nigel John Black late of 124 Whangapoua Road, Coromandel, linesman, after being sufficiently identified died at the said address on the 29" day of November 1996 by misadventure caused by a suspension by the neck with a ligature ..." 2 3. There were, of course, various communications between the respondent and the appellant's solicitors. In a handwritten memorandum of 15 July 1998, Dr Loughlin, branch medical adviser to the respondent, advised that upon reading the Coroner's report he was satisfied that the deceased's injuries, which led to his death, were self-inflicted and thus precluded from cover by the respondent pursuant to s.81(1)(a) of the Act. 4. On 15 July 1998 the respondent wrote to the appellant's solicitors to advise that the respondent had determined pursuant to s.81 that compensation was not payable for the death of the deceased. 5. After a number of communications between the parties, a Review Hearing was conducted on 18 February 1999. In a decision dated 22 March 1999 the Review Officer (Mr J W Haines) at Thames determined that, on the evidence available to him, the deceased's death was wilfully self-inflicted. The Review Officer accepted that the respondent was required to consider the Coroner's findings at its decision on cover, but noted that the medical evidence relied on by the Coroner had not been supplied to the Review Officer. 6. The appellant's counsel filed a notice of appeal on 12 April 1999 and raises two issues, namely: whether the respondent is bound by the Coroner's finding; and ii) if not, whether the evidence supports the respondent's decision that compensation is precluded under s.81 of the Act. 7. I received very thorough and helpful typewritten and oral submissions from both counsel together with much documentation e.g. Review Officer's decision, transcript of evidence at inquest hearing, photographs, briefs of evidence from a number of witnesses at inquest and Coroner's decision. 8. Since the Review Officer's decision of 22 March 1999 the respondent has obtained a report from Dr Jan Reeves, adult and clinical psychologist, in response to the evidence contained in the transcript of the inquest hearing. That report is dated 13 September 1999 and was admitted by consent. Also, Dr Reeves gave evidence and was cross-examined before me. Review Officer's Decision 9 . With respect to the application of s.81 the Review Officer determined as follows on page 4 of his decision: "The second consideration is whether cover ought to have been declined under section 81. This section excludes cover for self- inflicted personal injury or suicide. ACC's position is that Mr Black's death was as a result of self- inflicted injury, and so under section 81(1)(a) there is no cover. Mr Walmsley argues that the clinical psychologist's evidence at the inquest demonstrated that Mr Black was unable to formulate intent, he was acting in an irrational, unconscious manner, and for this 3 reason the Coroner's view was that his death was by misadventure - an accident. Mr Walmsley has not supplied any evidence from the clinical psychologists he refers to, to support his submission. While the Coroner says Mr Black was in a deranged state of mind, he says also that further investigation of this was required and that his decision relied entirely on analysis of the death scene. The Coroner has speculated on a number of possible explanations for the death, declined to make a finding of suicide and offered no opinion on intent to injure. ACC is not bound by the Coroner's finding but quite clearly is bound to consider it. The standard of proof in this jurisdiction is the balance of probabilities. Notwithstanding the conflicting evidence in the Coroner's report regarding the quantity of alcohol consumed on the day of his death, the facts are that within 15 minutes of an argument with his wife in which he threatened to kill himself, Mr Black was found dead, presumably after having made a noose for the rope and successfully securing it. In other words, Mr Black had successfully carried out his threat within a 15 minute period. His wife - arguably the person who knew him and his state of mind best - was sufficiently concerned that he intended carrying out his threat was prompted to go out to check on his safety. For these reasons I am persuaded that the evidence supports ACC's view that Mr Black wilfully intended to injure himself, so disqualifying the claim for cover." The Relevant Section of the Act 10. Section 81 of the Act reads as follows: "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 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." The Report of Dr Reeves 11. The said report of Dr Reeves dated 13 September 1999 is detailed and to some degree technical. It covers the issues of Mr Black's possible use of Prozac, alcohol, paint thinners, and (in the past) of cannabis. Some of the statements in that report are as follows: 4 "Could the consumption of one, all or a combination of the above drugs cause a person to black out? It is my opinion that Prozac in combination with alcohol and paint thinners would not have caused him to lose consciousness. Nor would alcohol in the amount measured in his blood be likely to cause him to lose consciousness Did Mr Black deliberately kill himself? It is well known that people who have a history of suicidal threats and attempted suicide have a higher risk of completed suicide than depressed patients with no history of suicidal threats or attempts. In 1995 Mr Black had previously aborted a suicide attempt which was made at a time when his wife was having doubts about their relationship, as reported in Mr Garwith's evidence. Dr Marriott reported that Mr Black was in good spirits when he saw him a few days prior to his death. Mrs Black, however, described her husband as being quite disturbed in the week prior to his death with him at times appearing calm but at other times not. There is evidence that he had made an appointment to see Dr Marriott the day after his death. However, within 15 minutes of an argument with his wife in which he threatened to kill himself, Mr Black was found dead with a noose around his neck. His wife was concerned about him and did go and check on him. It is my opinion that this could have been an impulsive decision on the part of Mr Black in the sense that he made up his mind to carry it out whilst he was arguing with his wife. He told her that he supposed she would be happy if he killed himself and he also said that he was going to wreck everything'. It is my opinion that Mr Black did deliberately kill himself. Was his mind deranged by drugs at the time he did this? It is my opinion that he was under the influence of alcohol, and was possibly depressed. I believe his judgement was mildly to moderately impaired and the suicide was likely an impulsive act. ...' 12. In cross-examination it was put to Dr Reeves that the deceased may have been setting up a charade to attract attention but slipped in the course of it. She responded "He could have that is one possibility". She made it clear that her comments about the effect of alcohol were based on her knowledge about the effect of the deceased's blood alcohol level. 13. It was put to Dr Reeves that if the deceased's judgement was impaired mildly to moderately then he did not know what he was doing. She responded "Not necessarily. He had not lost touch with reality.". It was put to her that her opinion did not fit with that of the three medical experts at the inquest hearing and she responded "Someone can still be inebriated and know what they are doing." 5 A little later she responded (inter alia) "That a person can be under the influence but still know what they are doing". At that point I asked whether a person could be very drunk but still be thinking "straight" and yet do something that the person would not do if sober. Dr Reeves responded "Correct". My question must have related to what she had been saying. 14. Dr Reeves stated in cross-examination that she accepted that, at material times, the deceased's judgement was impaired from alcohol. That was in response to the question whether the coroner had been wrong to find that Mr Black "was clearly in a deranged state of mind caused by the mixture of drugs and alcohol'. 15. It was put to her whether the Coroner was wrong to find that the deceased did not deliberately kill himself - (although that seemed to me an inference rather than a finding). She responded that she disagreed with that i.e. she stated that the deceased did deliberately kill himself in her assessment of the overall situation. 16. In re-examination she confirmed that the deceased would have been aware of the consequences of his actions in the sense that he knew what he was doing but would not have thought through those consequences. She also put it that he would be aware that if he hanged himself he would kill himself, but he would not have thought through beyond that to the consequences of his death on his family. 17. Dr Reeves seemed to be influenced in her assessment of the situation by the domestic argument which preceded the deceased's death, by his having previously threatened to kill himself, by him having gone to his garage and made a noose for himself and having hanged himself, and that the deceased's wife was worried about the situation and came to check on him. 18. I appreciate that the financial consequences of the outcome of this case are very significant for the deceased's widow and children. A Summary of the Submissions for the Appellant 19. The appellant's submission is that for the deceased to have committed suicide, he would have needed to be aware of the probable consequences of his actions. He would have needed "intent". Counsel referred to the evidence from Mr Gibbons a psychologist, Dr Marriott the deceased's doctor, and Mr John Garwith the deceased's psychologist, that by virtue of the amount of alcohol consumed by the deceased and the taking of prescribed medication "Prozac" and the possible inhalation of paint thinners, the deceased would not have been aware of what he was doing. I was referred to the considerable amount of evidence that the deceased may have in fact "blacked out" and collapsed while the rope was around his neck for the purpose of only meaning to scare his wife. 20. Mr Bradford referred to there being substantial evidence before the coroner, and set out in his report, that the deceased was in a deranged state of mind and in all likelihood incapable of forming the required intention/wilfulness to make a finding of suicide. Counsel emphasised that suicide needs to be wilful as does self- inflicted injury in terms of s.81(1)(a) of the Act. There was reference to the dictionary definition of "wilful". 6 21. Inter alia, Mr Bradford submitted that it is superficial of the respondent to determine that the actions of the deceased were wilful on the basis that he tied a rope around his neck and had gone through the motions of falling. He submitted that ignores the evidence of the experts at the inquest and the Coroner's finding that the deceased was in a deranged state of mind when he died. 22. It was submitted that the clearest indication that the deceased did not wilfully inflict the injury on himself is the position of his feet and legs. There was reference to photographs tendered to me and quite some reference to the detail of the position of the deceased's body, the saw stool, to the deceased's neck not having been broken, and to there being no suicide note. 23. Mr Bradford then analysed the findings of the Review Officer. 24. Mr Bradford submitted that the respondent is bound by findings of the Coroner's Court and, inter alia, submitted that the Coroner's findings are a judgment in rem so that it binds "everybody including third persons not party to the litigation". There was reference to the nature of the Coroner's Court as established by the Coroners Act 1988. 25. Mr Bradford submitted that the respondent has no authority to make a finding of suicide and only the Coroner can do that. He submitted that, in this case, the Coroner found the deceased was in a deranged state of mind at the time of his death and it is irreconcilable with that finding to hold that the deceased wilfully killed himself. He submitted that the respondent's determination that the deceased wilfully inflicted injury upon himself is a de facto determination that the deceased took his own life. He pointed out that this is very upsetting for family and friends (I certainly understand this), as is that the Coroner found death was by misadventure and yet the respondent finds it to have been wilful. 26. Essentially, Mr Bradford submitted for the appellant that the Coroner's finding that the deceased died by misadventure caused by a suspension by the neck by ligature precludes the respondent from contending that the injury was wilfully self- inflicted. 27. In supporting oral submissions, Mr Bradford stressed his submission that if a person is in a deranged state of mind, that person cannot have an intention to injure. He submitted that an interpretation and analysis of the Coroner's decision leads to the interpretation, at least by inference, that the deceased did not intend to commit suicide because the Coroner found that the deceased was in a deranged state of mind. He submitted that if the respondent disagrees with the Coroner's verdict it should appeal it. He again stressed that the Coroner rejected the proposition that the deceased wilfully intended to injure himself because he found the deceased to be in a deranged state of mind at material times 28. Mr Bradford referred to the views of Dr Reeves and submitted that they differ from the views of all the other expert witnesses. A Summary of the Submissions for the Respondent 29. The respondent submits that the Coroner's finding is not fatal to the Corporation's decision under s.81 for two reasons:- 7 (a) The Corporation's decision does not conflict with the finding by the Coroner; and (b) The Corporation is not, in any event, bound by the Coroner's finding. 30. The Coroner in his decision set out the facts and certain parts of the evidence from the inquest hearing. The Coroner then outlined the possibilities as to how the deceased may have died. He then stated on page 3 of his decision: "Having taken all of these factors into account, I am not prepared to make a finding of suicide. There are other possible and reasonable explanations. He was clearly in a deranged state of mind caused by the mixture of drugs and alcohol; he may have blacked out at the time he put the rope round his neck; he may have been setting up a charade for his wife knowing that she would come out and check that he was alright and slipped." 31. Mr Tui submits that although the Coroner was not prepared to make a finding of suicide it is significant that the Coroner did not expressly make a finding against suicide. The Coroner did accept however that further investigation was appropriate as to the effect of the substances alleged taken by the deceased prior to his death. Mr Tui submitted that, by doing so, the Coroner acknowledged that he did not have sufficient information to make a finding one way or the other on the issue of suicide. 32. Accordingly it is submitted for the respondent that even if the Corporation is bound by the Coroner's finding, which is denied by the respondent, the Coroner in this particular case has not made a finding which would prevent the respondent Corporation from making its own determination on the issue. Notwithstanding, it is submitted for the respondent that the Corporation is not bound by a Coroner's finding; as neither the Coroners Act 1988 nor the Accident Rehabilitation and Compensation Insurance Act 1992 expressly, or impliedly, stipulate that the findings of a Coroner are binding on the Corporation in its administration and application of the 1992 Act. 33. Mr Tui further submitted that the Courts have held, both in New Zealand and England, that the Coroners Act 1988 is a unique jurisdiction with limited application to the liability of parties in other jurisdictions. Mr Tui referred to case authorities and to Halsbury's Laws of England, Fourth Edition, Vol 9(2), page 520 at paragraph 887. 34. He also submitted that the standard of proof required to be met by a Coroner in a finding of suicide is not the same as that required by the Corporation under the 1992 Act. The Corporation must be satisfied on the balance of probabilities that s.81 operates. Under the Coroners Act 1988 the standard of proof is higher. In England, the criminal standard of beyond reasonable doubt must be satisfied (refer Halsbury's Laws of England, Fourth Edition, Vol 9(2) at page 543, paragraph 934). In New Zealand the standard of proof (for a coroner's inquest) is higher than the civil standard - Barker ACJ in Re Sutherland (Deceased) [1994] 2 NZLR 242. 8 35. Mr Tui then addressed the issue whether s.81(1) applies. A claimant is not entitled to compensation for personal injury where any one of the following circumstances under s.81(1) apply:- (a) The personal injury is wilfully self-inflicted (s.81(1)(a)); or (b) Personal injury results from an intent to injure himself or herself (s.81(1)(a)); or (c) Death caused by suicide (s.81(1)(b)). 36. In The Executor of the Estate of Peter Thomas Goodwin (No. 71/99) the District Court held that the onus is on the respondent Corporation to establish that s.81 applies and, inter alia, the Court attributed the following meaning to the term "suicide":- "The meaning of suicide is the act or instance of killing oneself intentionally. It is axiomatic that if one's mental status is such that one cannot form that intention, a self inflicted death cannot be regarded as suicide." 37. Personal injury is defined under s.4 of the 1992 Act as meaning "the death of, or physical injuries to, a person". 38. Mr Tui submits that a 'wilful act then is something that is done deliberately whether or not the person has reviewed its possible consequences before committing it. In the present appeal the deceased was found hanging with one end of a rope tied to his neck and the other attached to the rafter of the deceased's shed. The pathologist's cause of death was suffocation. It is submitted for the respondent that the evidence demonstrates on a balance of probabilities that the deceased committed suicide (or, alternatively, wilfully or with intent to injure himself brought about his own death). 39. Although there were questions raised during the inquest hearing as to whether the deceased stepped off a saw horse or whether he merely bent his knees from a standing position, Mr Tui submits that the evidence supports the contention that the deceased wilfully and intentionally caused his own death. Mr Tui referred to the deceased, immediately following an argument with his wife, having gone to his shed. He attached one end of a rope to the rafter of the shed. He placed the other end around his own neck. Mr Tui submits that the particular method by which the deceased brought about his death may be arguable, but the deceased's clear intention as demonstrated by his actions, is not. 40. Mr Tui submits that the evidence provided at the inquest hearing demonstrates that the deceased had a history of depression and that he had on a prior occasion threatened to kill himself at a time when he was under severe stress with marital problems. He referred to the deceased's wife having given evidence that, in the weeks leading up to the deceased's death, they had been having trouble with their marriage and the problems were coming to a head at the time of the death. In fact immediately prior to the deceased's death the deceased and his wife had had an argument. That evening the deceased's wife had returned 9 home at about 1am. The deceased and his wife then argued for some time. According to the deceased's wife, the deceased then stated: "He then turned and said to me that I suppose I will be happy if I killed myself. I told him not to be so stupid. Nigel then went on to say that he was going to wreck everything. I told him again not to be so stupid. .. The deceased then went to the shed. Within 15 minutes (the deceased's wife went to the shed to check the deceased) the deceased had killed himself. 41. Mr Tui submits that the evidence therefore demonstrates that at the time the deceased hanged himself, he had been having marital problems for some time and that these problems were reaching a head at the time of his death. He also submitted that it is significant, in assessing the effect of the marital problems on the deceased's actions, that a previous attempted suicide was precipitated by marital problems also; and that it is no less significant that immediately prior to his death the deceased and his wife had had an argument. 42. Mr Tui referred to the expert evidence of Dr Reeves who had considered the Notes of Evidence for the inquest hearing. 43. Mr Tui then addressed, in great detail, the substances which allegedly had been taken by the deceased i.e. Prozac, alcohol, paint thinners. He also analysed the opinions expressed by Messrs Gibbons and Garwith and Dr Marriott on whom the case for the appellant relies. He dealt, in particular, with the effect of alcohol and drugs. 44. Mr Tui then submitted that the testimony of persons who last spoke to the deceased prior to his death further supports the contention that the deceased understood the actions he was taking at the time of his death. He referred to the evidence of the deceased's wife, and two others at the inquest, and to a friend, Mr Stewart Simpson, concluding helpful evidence with the view that the deceased had sounded normal to him on the early morning of the day of death Mr Tui submitted that although there is some evidence that the deceased's mood changed on the evening of his death, that evidence ought to be viewed in the context of the deceased's history of mood swings and his then marital difficulties. Accordingly, Mr Tui submitted that, on the balance of probabilities, the deceased committed suicide or alternatively wilfully, or with intent to injure, brought about his own death, so that the Review Officer's decision ought to be upheld. 46. In his final oral submissions Mr Tui submitted, inter alia, that the Coroner did not make a finding that suicide did not occur but considered there were a number of possibilities and that, on the evidence, the Coroner could not say one way or the other whether the deceased deliberately killed himself or not. Mr Tui submitted that it does not follow from the deceased having a deranged mind that the deceased was unable to kill himself. He submitted that there must be an onus on the appellant to show that the respondent's decision is wrong and that, on the facts as known, I should conclude that the deceased deliberately stepped off a saw horse having put a noose around his neck and intended to kill himself. He submitted that, looked at overall, the facts show that the deceased acted 10 deliberately, knew what he was doing, and must have understood the consequences of what he was doing - at least to the extent that he would kill himself. Reasons for Decision 47. I am most conscious of the very sad background to this case and to the economic consequences on the deceased's widow and children of the decision of the respondent which has been upheld by the Review Officer. I have deliberately summarised the submissions of both parties above in some detail (although I have not considered it necessary to deal with their many references to case authorities) because I need to stand back and decide whether or not, on the balance of probabilities, the appellant is precluded from cover by s.81. 48. In my view, the respondent is not bound by the Coroner's finding, although it is certainly a factor to be taken into account as is the evidence given to the Coroner. However, the Coroner's finding is not conclusive on the issue before me as to whether or not compensation is precluded under s.81 of the Act. A Coroner is required to apply proof of suicide to the standard of a high degree of probability - Re Sutherland (supra); but I am concerned with the lower standard of the balance of probabilities. As is stated in Halsbury (said reference, para 887) when referring to the purpose of an inquest: The task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but how the deceased came by his death, a more limited question directed to the means by which the deceased came by his death. t is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. Nor is it the function of the inquest to provide a forum for attempts to gather evidence for pending or future criminal or civil proceedings. .... 49. It seems to me that the wording of s.81 is such that the onus must be on the respondent to show that it applies to preclude cover for (in this case) the death of a person. It seems to me that the onus on the respondent must be to show that, on the balance of probabilities, the deceased's death was due to suicide. 50. Although the appellant has the initial onus of proof as a claimant, where the respondent relies on an exclusionary provision like s.81(1), then the onus shifts to the respondent to show wilful self infliction of personal injury or suicide. If the appellant relies on the exception in s.81(2) to the exclusionary provision s.81(1), then the appellant has the further onus of showing (in this case) that the suicide was the result of mental injury. At this appeal level, the initial onus on the appellant is to show that the decisions of the respondent and the Review Officer (to decline cover) are incorrect. In any of these situations the standard of proof is that of the balance of probabilities. In this appeal, I find, on the balance of probabilities, that the appellant estate has not shown the respondent or the Review Officer to be wrong, but the respondent has proved that the late Mr Black's death was (on the balance of probabilities) suicide, and (on the same standard) the appellant has not proved that the suicide was the result of mental injury. 11 When one stands back and looks at the evidence overall, one cannot escape the facts that the deceased had threatened suicide in much the manner in which it happened, had implemented that threat within a short time, and that the circumstances in which the deceased was found would normally connote a deliberate intention to at least inflict personal injury upon himself and, indeed, death. I appreciate that the deceased was under the influence of alcohol and drugs and had some history of mental health disturbance, but the circumstances of his death, when taken with the overall evidence, must indicate that he knew what he was about. In any case, Dr J Reeves has specialised in this area and her opinion evidence, referred to above, is that this was a case of suicide in terms of the balance of probabilities. 52. This Court is not bound by the coroner's finding that the late Mr Black was in a deranged state of mind at material times. Also, it does not necessarily follow that a person having a deranged mind is unable to intentionally kill himself. The issue must be the extent or scope of any such derangement. From the evidence overall, and with particular reference to the expert opinion evidence of Dr Reeves, I find that, on the balance of probabilities, the late Mr Black knew and understood what he was doing when he took his own life. I am in broad agreement with Mr Tui's submissions for the respondent. 53. I certainly accept that we will never know whether the deceased was merely wishing to scare his wife and family, or something like that, and slipped in the course of the circumstances of the scare, or whether, for some reason or other, he had at that point of time decided to end his life. Sadly, when one analyses the situation at law in terms of the balance of probabilities, one must, in my view, conclude that the Review Officer and the respondent have correctly decided the issue. That is the finding to which I come. 54. Accordingly this appeal fails. I would be prepared to accept submissions about costs because this could be a case where the respondent should contribute to the legal costs of the appellant estate. Accordingly leave to apply is reserved regarding costs. Judge P F Barber District Court Judge Wellington dca 16899.doc