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Accident Compensation Cases

Accident Compensation Corporation v Stevens (HC, 29/04/93)

Judgment Text

JUDGMENT OF GREIG J 
GREIG J
This is an appeal against the decision of the Accident Compensation Appeal Authority given on 1 March 1991. The Appeal Authority allowed the respondent's appeal against the decision of the Review Officer. The result was that the respondent was not debarred from compensation by s 90 of the Accident Compensation Act 1982. 
On 10 July 1988 the respondent was an inmate in Paparoa Prison. His cell-mate was in possession of two palfium tablets. He crushed up the tablets in his own saliva, placed them in a syringe which he had in his possession and, after injecting himself with some of the contents, offered the rest to the respondent. The respondent willingly accepted and permitted the injection into his left wrist. The injection went into a radial artery. It caused inflammation and blocking of the artery which cut off the blood supply to the hand allowing gangrene to develop. His left hand was surgically amputated on 14 July 1988. Both respondent and his cell-mate were charged under the Misuse of Drugs Act 1975. Both pleaded guilty to a charge of administering and being a party to the administration of palfium. The respondent was convicted and discharged. 
The respondent made a claim under the Act but on investigation the Corporation declined it, relying upon the terms of s 90. The respondent appealed or applied for review which was heard on 28 July 1989. Before the Review Officer the respondent stated on oath that he had been asleep in his cell and that the injection was made without his knowledge and that he knew nothing about it until the next morning. In light of inconsistent contemporary statements made by the respondent to the Police and to the doctor and surgeon who had attended him and other evidence which conflicted with this new version of events, the Review Officer, in a careful and comprehensive review of the evidence, unhesitatingly rejected the evidence before him and concluded that the respondent was fully aware of and consented to the injection in his wrist by his cell-mate. The Appeal Authority came to the same conclusion. The respondent does not now contend to the contrary. 
Section 90 of the 1982 Act is, for the purposes of this case, the same as s 137 of the 1972 Act and of s 81 of the current legislation, the Accident Rehabilitation and Compensation Insurance Act 1992. The appeal falls to be decided under the terms of the 1982 Act. The section deals with wilfully self-inflicted personal injuries and suicide. As its heading indicates it provides for two different situations, injuries that are self-inflicted and injuries that are caused to be inflicted upon the self. It was conceded that the first of these situations did not apply here. The relevant wording of the section, then, for the purposes of this appeal is as follows: 
“90. (1) No compensation shall be payable under this Act in respect of— 
(a) Any personal injury that a person … , with intent to injure himself, causes to be inflicted upon himself, …  ”
It may be noted that in respect of the other entitlement to cover as defined, namely, rehabilitation assistance, the Corporation has a discretion: see s 90 (3). 
The Corporation's argument, in essence, is that the personal injury was the injection into the wrist, that the respondent caused that to be inflicted upon himself and with intent that that injury, namely the injection, occur. The events that followed are “in respect” of that personal injury and so s 90 applies. 
I think it is necessary to deal with this argument and, indeed, the various parts of the section in turn. The first part is the phrase “any personal injury”. That is not the same as “personal injury by accident”. That latter phrase is defined in the Act and is a well known and well discussed concept in numerous cases and authorities which trace back to the Workers' Compensation legislation and continue in effect under the Accident Compensation legislation. The two phrases, however, are quite distinct and it is incorrect, in my view, to attempt to construe s 90 by treating the phrase “any personal injury” as if it was the same as “any personal injury by accident”. The whole point is deliberately inflicted injury, not accidental injury It is needlessly confusing and contrary to the plain words to take account of the accidental or unexpected consequences which may affect the character of an event so that it falls within the definition of personal injury by accident. These consequential matters are provided for in the phrase “in respect of” which is of the widest meaning and implication, apt to include and to cover all consequential results of any personal injury. 
The Review Officer concluded that the injury to the respondent within the term “personal injury” in s 90 (1) (a), was the injection per se. That is, I think, correct. An injection by a syringe with a needle necessarily involves the piercing or penetration of the skin, the breaking of the skin, down into the tissue where the drug can take its course to the other parts of the body where its effects will take place. It is, I think, well known that injections are done into a vein and other parts of the body whether for medicinal, curative, sedative or illegal purposes. That that can properly be described as an injury is, I think, clear. That that was personal injury which the respondent caused to be inflicted upon himself is now obvious. 
There was some argument as to whether the insertion into the artery was the crucial aspect of the injury since that was the immediate cause of the harm. That might raise the difficulty that the respondent would not have intended such harm or anything that might cause it. The Appeal Authority expressed a view that the injury was the injection into the artery, contrary to the respondent's intention to have the injection into the vein. That view, so far as it requires a finding of intention on the part of the respondent, seems to be without supporting evidence. All the evidence shows is that he intended the injection into his wrist, leaving it apparently to his cell-mate to choose the right spot. There is no evidence which would give rise to an inference that the respondent or a person such as him would never inject or allow to be injected a drug into his artery. The evidence and the inferences from it are I think clear, that the respondent did not care, may not have appreciated the distinction and must be taken to have accepted the risk leaving it to his cell-mate to make the injection where he thought fit, thus causing it to be inflicted in the artery. The Appeal Authority was, I believe, led to the view he took because he was considering the point against the term “personal injury by accident” rather than personal injury. Without the confusion of consideration of accidental and unexpected consequences which the former term requires, then the difficulty arising out of the choice of vein or artery disappears leaving the injection per se as the injury. It may be, in any event, that in the circumstances of a case such as this the respondent caused the arterial injection to be inflicted because he relied on the other entirely. So one who invites another to use an axe to cut off the top of a finger causes to be inflicted upon himself a greater injury if the axe misses its aim. 
The next point is the meaning of the phrase “with intent to injure himself” and this is the pivot of this case. I think that that means with intent to harm himself, to cause injury, to hurt, and not merely to inflict the injury in the phrase “any personal injury”. If the phrase means with intent to cause the injury then the section becomes tautological. You cause to inflict a cut or scratch with intent to cut or scratch yourself. The essence of the matter is self-inflicted harm and the results which occur and arise out of that. That still seems to me to be a consistent meaning with the purpose of the section when one considers different wording of the section as applying to the injuries that a person wilfully or deliberately inflicts on himself. In that situation there is no requirement of an intent to injure and it may well be, although this is not the question to be argued here, that the person who deliberately injures or causes an injury such as a pierce or cut on himself must accept the consequences whether he meant to harm himself or whether he meant to pleasure himself. Thus the person who injects himself and suffers unforeseen harmful consequences could be caught. 
The meaning that I prefer provides, I think, consistent treatment of other eventualities mentioned in the argument such as ear-piercing, tattooing and other actions carried out by others which may lead to injury but which are not intended to harm. It was suggested that such situations could be dealt with under the provision for medical, dental or first aid misadventure, but that may not fill the situation in all these cases. It is certainly difficult to see that tattooing or even ear-piercing could fall within any medical procedure. Moreover, qualification for compensation under that provision would still be barred under s 90. 
In this case I agree with the Appeal Authority that the intent of the respondent was not to harm himself but to receive the gratification and the anticipated pleasure of the drug. It is not, I think, an intention to harm just because drugs were taken. It is, of course, accepted that the taking of drugs is harmful but persons such as the respondent who take drugs do not do so intending to harm themselves and they reject or ignore the evidence of harm which arises, albeit indirectly, from the taking of drugs. It is not enough either to say that the respondent was reckless or careless. That is not sufficient to create intent and certainly not to override what is clearly the intent in this case, to obtain pleasure. 
In the result, then, for rather different reasons, I agree with the decision of the Appeal Authority and the appeal must be dismissed. I reserve the question of costs and counsel may make submissions. 

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