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Accident Compensation Cases

Director of Proceedings v Emms (HRRT, 25/02/13)

Judgment Text

DECISION OF TRIBUNAL 
Mr RPG Haines QC, Chairperson, Ms WV Gilchrist, Member, Ms ST Scott, Member
Introduction 
[1]
Mr Emms is a self-employed Shiatsu practitioner. Shiatsu is a therapy in which the client remains fully clothed. It is alleged that following a Shiatsu therapy session (about which neither the aggrieved person nor the Director of Proceedings (the Director) makes complaint), the aggrieved person, being still in need of pain relief, was offered a non-Shiatsu massage by Mr Emms. It is said (inter alia) that in the course of this non-Shiatsu massage Mr Emms required the aggrieved person to undress, touched her breasts and buttocks without her informed consent and commented inappropriately on her breasts. Mr Emms' defence is that following the Shiatsu therapy session the aggrieved person left his premises and did not return. There was no non-Shiatsu massage therapy and the events alleged by the aggrieved person did not happen. 
[2]
The primary issue in these proceedings is credibility and whether the Director has satisfied the Tribunal, to the civil standard, that the various breaches of the Code of Health and Disability Services Consumers' Rights (the Code) alleged in the amended statement of claim have been made out. 
Non-publication orders 
[3]
On the application of the Director, and without opposition by Mr Emms, the Chairperson by Minute dated 1 September 2011 made an order pursuant to ss 95 and 107 of the Human Rights Act 1993 that publication of the name or any details leading to the identification of the aggrieved person be prohibited pending further order of the Tribunal. These provisions of Part 4 of the Human Rights Act apply to proceedings under the Health and Disability Commissioner Act 1994 (the HDC Act) by virtue of s 58 of the latter Act. 
[4]
At the commencement of the hearing on 14 November 2011, with the consent of Mr Emms, the Tribunal made final the Chairperson's interim order. 
[5]
Without opposition from the Director, an interim order was made by the Tribunal prohibiting publication of the name of Mr Emms and of any details which might identify him. That non-publication order was to continue in force until the delivery by the Tribunal of its final decision. Whether the non-publication order is to continue is addressed at the conclusion of this decision. 
The parties 
[6]
These proceedings have been brought by the Director pursuant to s 50 of the HDC Act. The remedies sought in the amended statement of claim are a declaration that the actions of Mr Emms breached the Code, damages of $50,000 for humiliation, loss of dignity and injury to the feelings of the aggrieved person and damages of $30,000 for acting in flagrant disregard of the rights of the aggrieved person. It is to be noted that while any damages recovered by the Director must be paid to the aggrieved person, it is the Director, not the aggrieved person, who articulates the claim, nominates the damages sought and has the responsibility to establish the claim. The aggrieved person has no control over the quantum of damages sought nor does she determine the amount to be awarded by the Tribunal should it be satisfied that it is appropriate for an award of damages to be made. See further s 57(2) of the HDC Act. 
[7]
Following a fall on 3 November 2009 the aggrieved person found herself in a great deal of pain and by 5 November 2009 was struggling to stay at work. Later that day she had acupuncture therapy but the pain in her back was not relieved. On the evening of 6 November 2009 she went to talk with friends at a pub and was there referred to Mr Emms whom she had met at that pub on previous occasions and knew that he was a Shiatsu practitioner. She approached him at the pub, told him of the intense pain in her back and arranged an appointment for 10.30am on the following day, Saturday 7 November 2009. 
[8]
Mr Emms has been one hundred percent visually impaired since an incident in November 1988. He says that adjusting to being blind has required determination and a positive outlook. In 1995 he took up Seido Karate. It was a turning point in his life and his attitude to being blind as it taught him to have a positive, honest and sincere way of approaching life. 
[9]
After completing a three year course, Mr Emms on 3 August 2004 graduated from the Shiatsu College of Aotearoa with a Diploma of Shiatsu scoring a 93% average over the years he studied, in both theory and practice. He believes he is the first blind person to gain such diploma. 
[10]
As part of his training he became familiar with the code of ethics and practice of Shiatsu and told the Tribunal he maintains that code in his sessions. 
What is Shiatsu 
[11]
The definition of Shiatsu, as given by the Shiatsu Practitioners Association of Aotearoa (New Zealand) Ltd, is as follows: 
“What is Shiatsu? 
Shiatsu is based upon the oriental medical understanding that our physiological and psychological structures are supported and affected by meridians. Meridians are channels of living magnetic energy and a Shiatsu practitioner will work with both the meridians and associated acupressure points during a session. 
It is a fully clothed therapy and takes place on a traditional style futon, usually lasting 40 minutes to one hour. Shiatsu involves elements of oriental diagnosis, abdominal massage, pressure application to various parts of the body using fingers, thumbs, knees and elbows, and gentle stretches and joint articulation. Practitioners may recommend specific lifestyle and diet changes, or exercises to assist in the healing process. 
What does Shiatsu feel like? 
Each Shiatsu caters directly to your specific needs at the time. There is no pre-prescribed routine for a certain condition, although appropriate points may be employed to benefit your specific symptoms. Several sessions may be recommended. Some clients decide to make Shiatsu a regular part of their life because they experience the benefit of the self-care time, in which to switch off and just be. 
The benefits of Shiatsu 
Shiatsu is a safe therapy and helpful for pure relaxation and stress reduction, supporting pregnancy, prevention and maintenance, back pain, RSI, sciatica, headaches, migraines, neck stiffness, joint pain and reduced mobility, menstrual problems, digestive problems, asthmatic symptoms, sports injuries, depression, anxiety. 
… ”
Mr Emms' practice 
[12]
Mr Emms lives in a Housing New Zealand property and receives a disability allowance through Work and Income New Zealand. His financial circumstances are best described as poor. He has no savings and no assets. His household possessions are minimal. 
[13]
He practises Shiatsu from home but has not been providing Shiatsu services regularly since graduating with his diploma in 2004. He was not advertising his services in 2009. He told the Tribunal that he mainly practises with about five regular clients he has been treating for some time. Three of those clients are women. He has never (until the present matter) received a complaint about the way he practises Shiatsu. 
[14]
At the beginning of a typical session he talks to a new client about current conditions and medications they have been on, whether there is anything that may prevent them from receiving treatment (eg pregnancy), and their medical, treatment and injury history. If the client has not had Shiatsu treatment before, he explains that it is a clothes on massage of the pressure points, like acupuncture but without needles. 
[15]
Either at the time of taking the client's history or at the end of the session (or both) Mr Emms types his client notes into a Voice Note machine. Entries are made by conventional qwerty keyboard. On playback a robotic voice reads out the notes which have been made. 
[16]
Because of his visual impairment Mr Emms has a chain on his entry door and the chain is usually engaged as he cannot see when a person enters his home. The noise of the chain alerts him to the arrival of a visitor, tradesman or client. During the Shiatsu therapy sessions the chain is engaged to ensure the client's privacy. 
Saturday 7 November 2009 — the Shiatsu therapy 
[17]
Because the accounts given by the aggrieved person and by Mr Emms of the Shiatsu therapy session are largely in accord (the few differences in their accounts are not materially relevant), it is not necessary for a detailed account to be given. 
[18]
As arranged, the aggrieved person arrived at Mr Emms' home at about 10.30am on Saturday 7 November 2009. Mr Emms said that after engaging the chain on the front door he first spoke to the aggrieved person about her treatment history, current medication and current pain. He made notes on his Voice Note machine both at this time and at the conclusion of the session. 
[19]
The account given by the aggrieved person is that after being greeted by Mr Emms in a professional manner, some quiet music was put on and she was asked to lie face down, fully clothed on a mattress on the lounge floor. Mr Emms told her he could feel straight away that her hips were out of alignment and had been for years and that that was causing her back pain. The description given by the aggrieved person continued: 
“[13]
After asking me to roll on to my back, Rob bent my leg and very gently rocked it up and down. He then straightened the leg out to see if it was the same length as the other leg. This took time as he said the hip had been out for so long it may take another session to get it right. However he said I would be pain free when I left. 
[14]
The treatment was performed gently. Rob moved and rocked my arms and legs. When I was lying on my back, Rob talked a lot about breathing properly. Rob then asked for my permission to put his hand on my bare stomach to feel my breathing. I said that was ok. I was still fully clothed. Rob then asked me to put my hand in the middle of my chest. Rob seemed to use my upright hand as a guide to finding my sternum without touching my breasts. I thought, due to his blindness, this was a good technique. 
[15]
Rob had his fingers on my sternum and his hand on my stomach. He told me I had a problem with breathing correctly. Rob said to breathe from my belly. I said it may be because I get anxiety, but the medication I was taking had helped with that. Rob said my inability to breathe correctly had caused the anxiety. 
[16]
I also told Rob during the massage that I had a stressful job and so I would have to watch my alcohol intake, and I talked about my abdominal surgery and back injury. 
[17]
I didn't really go in with any expectations of what a Shiatsu massage would be like. At no time during the Shiatsu massage did I think Rob was unprofessional. I found I could trust him. 
[18]
After he had finished he told me we had gone over time. I offered him another $20. Rob said I didn't need to give him money but he did accept it. 
[19]
I have never had shiatsu before and had nothing to compare it to. I was still sore but Rob said that would pass. I felt hopeful that I was going to be out of pain. 
[20]
Rob offered me a drink of water and said that it was important to drink water after Shiatsu. Rob had a drink from a clear rigger containing what looked like beer. I asked him if it was beer. Rob said it was and that it was good for him. 
[21]
We walked to the door and when outside I asked if I could give him a hug. I asked to hug him because I felt really grateful that the pain seemed to have reduced. Rob said ‘I see you waited till we got outside, that's good’ and gave me a hug. I said goodbye and left about 11:15am. ”
[20]
Mr Emms disputes that he put his hand on the aggrieved person's bare stomach. He says he put his hand on top of her hand on her stomach. This is a technique which his tutor helped him establish when he obtained his diploma. He denies that he had a drink of beer after the session and says that he would not have had any alcohol while he was with a client. In addition he would not have been drinking on a Saturday morning. He does say: 
“[30]
During the session the AP told me that she was an alcoholic and that she was trying to control her drinking by not drinking until a certain time of day but no drinking of alcohol occurred. 
[31]
Once the treatment was complete, I told the AP to wait and see how she felt before I would recommend further treatment of any kind. 
[32]
After the session, I walked the AP to the door. I did not accompany the AP outside. I do not recall the AP asking me for a hug, or hugging her at all. I do not hug anyone. Since I went blind I have been very uncomfortable with hugging. ”
Saturday 7 November 2009 — the non-Shiatsu massage therapy 
[21]
The aggrieved person says that on returning to her vehicle she found she was again in agonising pain and was unable to get into the vehicle. In tears she returned to Mr Emms' home at about 11:20am or 11:25am. Mr Emms then gave her massage therapy. It was in this context that the alleged breaches of the Code occurred. Mr Emms says that the aggrieved person did not return to his home and he never massaged her. We begin with the account given by the aggrieved person. 
The evidence of the aggrieved person 
[22]
The aggrieved person says that: 
“[23]
Rob opened the door and I said I was in really bad pain again. Rob said the next client had cancelled so I could have the next session. Rob said because I had paid him extra money it would cover the cost of the massage which he thought I would now need. He said it was good that I had come back straight away. Again, I didn't have any expectations about what the second massage would involve, but I understood it would not be Shiatsu because what Rob was offering me was a different kind of massage to relieve the pain. When I have had massages that were not Shiatsu in the past, these have been focussed on the area requiring treatment. Towels or a sheet are used to cover up the parts of you that aren't being massaged. 
[24]
[25]
Rob followed me to the mattress on the floor. He said the massage would relieve the spasm which was probably due to my hips still being out of line. 
[26]
I laid face down on the mattress. He gave my back a rub with my shirt on. Rob asked me to take off my shirt. I took off my shirt. After a few minutes he said ‘and the bra has to go’ and he undid it. I was surprised and shocked at how quickly and directly he undid my bra. I was surprised that he hadn't asked my permission first. I was also surprised how quickly he had taken it off, given his blindness. At no stage did he tell me that he would be asking me to take my clothes off. 
[27]
Rob said that he needed to get some oil and went to the kitchen. He put some music on, it was a lot louder than in the first massage. On the way back to the mattress he locked the door. He came back with a bottle of cooking oil. 
[28]
He massaged my back with the oil and got lower towards my jeans. He said ‘lose the pants’. At this point I felt uncomfortable but as he was blind I thought it would be okay. When I say ‘okay’, I mean that I felt more comfortable than I might otherwise have felt about whether he might be a risk to me, and also because I thought he would not be able to see me without my pants on. 
[29]
I started to take off my jeans lying down and Rob quickly stripped them off me. He then said ‘and those can go too’ and stripped off my underpants. I was now completely naked. Rob did not use towels or anything else to cover me. 
[30]
I felt uncomfortable and froze. Again I was shocked how easily and quickly he had removed my clothing. I was now feeling scared and trapped. 
[31]
Rob continued to massage my back then buttocks and legs. He sang along loudly to the music. I apologised for taking up his time. The reason I said this is that by this time I was really quite freaked out and was just trying to bring the situation to an end. He said he could think of worse things than massaging me. He said he hadn't massaged for years and thought he would get back into it. 
[32]
Rob kept massaging very firmly down both sides of my hips with his fingers underneath me. I felt very uneasy as I felt his fingers were trying to get close to my pubic area. I felt helpless. 
[33]
Rob told me three times that he could check my hips better if I rolled over. Each time he said this I didn't say anything or move. He said we were nearly finished and asked me to roll over so he could check my hips. As he had said he was nearly finished I rolled over, as this seemed the quickest way to get out of there. 
[34]
Rob checked my hips and then very quickly put both his hands on my breasts and rubbed them. As I pushed his hands away Rob said ‘nice tits’. I said that wasn't on. Rob said ‘you don't want them to be the only things not massaged do you?’ 
[35]
I got up and dressed. While I was doing this Rob went to the kitchen which is in the same room. I didn't feel immobilised now but stunned at what he had just done. 
[36]
Rob handed me a glass of water, which I didn't drink, then asked if I would like a beer with him. I said no and left. 
[37]
I got into my car and was immediately in pain again. I felt shocked by what had happened, ashamed, dirty and very sad. I felt I had been taken advantage of. I felt he had used his blindness to gain my trust. 
[38]
I drove to City Care after hours surgery and made an appointment for 2pm to try and find out why I was in so much pain. It was now 1pm. I was unaware I had been at Rob's house from 10:30 to 12:45. 
[39]
I arrived home at 1:15pm. I felt angry. I rang Rob and told him I thought he had been really unprofessional. Rob said he could hear me breathing rapidly and said to slow down and breathe better. I told him that I was in a lot of pain and felt he had taken advantage of my vulnerability. At no time did Rob apologise. He did say it was a joke and that he wouldn't do that with me again. I hung up. 
[40]
At 2pm I went to see a duty doctor at City Care, which is an after-hours medical service. The doctor prescribed some very strong painkillers. 
[41]
On Monday 9 November I went to my own GP. The injury took about nine weeks to come right. ”
The evidence of Mr Emms 
[23]
As mentioned, Mr Emms says that the aggrieved person left after the Shiatsu therapy session and did not at any time return to his home. The events as described by the aggrieved person simply did not occur. However, he acknowledges that about two hours after the aggrieved person left his home, he received a phone call from her on his home telephone asking him whether he would like to meet her at the pub for a drink. He declined her offer. This was the last that he heard of the aggrieved person until about a year later he received notice that proceedings had been filed against him. He says that the account given by the aggrieved person of the non-Shiatsu massage is a fabrication on her part. He does not know why she would want to make something up like this and believes she has some mental health issues. 
Subsequent events 
[24]
The Tribunal has not been provided with details of the interaction between Mr Emms and the Office of the Health and Disability Commissioner. Mr Emms says that he has been made aware that the Office was trying to get in touch with him “quite a bit” after the initial complaint. He was having difficulty with his telephones. One was disconnected and one was not working reliably: 
“[39]
I recall first being notified of the complaint by letter. There were then several phone calls from a man named Mark Smith at the Health and Disability Commission. I admit that I was quite uncooperative at first. This was because I was angry that this complaint had even been made as I had done nothing wrong. Injustice makes me very upset, and I believe this whole inquiry is a great injustice. I feel like I have been hit by some kind of gold digger (despite my absence of money; I am on legal aid for this case). ”
[25]
By letter dated 2 February 2010 he wrote to the Office of the Commissioner: 
“I am returning the letter you mailed me regarding this client. The statements made in it were completely faluse. During one and only Shitatu treatment this client wil ever receive from me I followed all the traditional methods of Shitatzu. 
This client stated during the Shitazu that she was expermenting with not taking her perscribed medication for mental illness. This client also stated she is expermenting with control drinking during set hrs 2 manage alcholizim. From your letter enclosed her expermant must be considered a total falure. ”
[26]
Mr Emms said that the letter was written by a friend who at the same time was helping him with his shopping and parts of the letter are not accurate. Because of his disability he did not realise this at the time the letter was sent. 
[27]
On 22 March 2011 Mr Emms met with the Director at Mr Emms' home in Nelson. The Director raised with Mr Emms the question of the notes taken on the Voice Note machine. Mr Emms said in his evidence that he played to the Director the notes relating to the aggrieved person. Because the Director seemed (to Mr Emms) unable to understand the notes as read out by the robotic voice, Mr Emms repeated the voice notes and a note or record was made either by the Director or by his assistant, Ms Tina Liu. Later, on coming across the aggrieved person's file when looking for other records, he became so angry at the false allegations made by her and by the fact that a substantial sum of money was being sought from him, that he deleted the file. He now regrets having done so. 
[28]
During the hearing it was suggested by the Director when cross-examining Mr Emms that he (Mr Emms) had never kept clinical notes and that none had been produced at the meeting on 22 March 2011. In this context it is to be noted that the Director had earlier provided to the Tribunal and to counsel for Mr Emms a signed brief of evidence by Ms Liu giving her account of what transpired at the meeting. But in the end, the Director did not call Ms Liu to give evidence notwithstanding Mr Emms' insistence that he had indeed kept clinical notes. 
[29]
In closing submissions the Director contended that an adverse inference could be drawn from the failure by Mr Emms to produce his clinical notes when requested by the HDC investigator. 
[30]
As to this, the only evidence we have of what took place at the meeting on 22 March 2011 is the uncontradicted evidence of Mr Emms that he did produce the Voice Note machine to the Director and played it back to him. His evidence in this regard was corroborated by Mr C Benson who attended the meeting as support person. He told the Tribunal that the machine was played in the presence of the Director. It would appear that either the Director or Ms Liu made a note of what was provided by Mr Emms at the meeting from the Voice Note machine because both the Director and Mr Zindel put questions to witnesses quoting from such notes. The notes themselves were not produced as evidence. In the result the account given by Mr Emms was not challenged by any probative evidence and we approach the case on the footing that clinical notes were taken by Mr Emms on Saturday 7 November 2009, that those notes were made available (in voice form) to the Director on 22 March 2011 and that they were subsequently destroyed by Mr Emms. 
Other evidence called by Mr Emms 
[31]
In addition to calling Mr Benson, Mr Emms called two female clients who attested to receiving Shiatsu treatments from Mr Emms. They said that they had always found him to be professional during their treatments, their clothing had always remained on and as women, they had felt comfortable with Mr Emms providing Shiatsu treatments. A third client who was unable to attend the hearing said much the same in her unsworn brief of evidence. Mr Benson, who has also received Shiatsu therapy from Mr Emms, similarly deposed that the treatments he had received have always been provided by Mr Emms professionally and ethically. While the Director opposed the admission of this evidence he accepted that it could be admitted by the Tribunal under ss 105 and 106 of the Human Rights Act 1993. 
Credibility assessment 
[32]
The primary issue before the Tribunal is a stark one. Did the aggrieved person return to Mr Emms' home on the Saturday morning for non-Shiatsu massage therapy and did events then unfold in the manner described in her evidence? If not, the Director's case fails in its entirety. If events did unfold as alleged by the aggrieved person, the Director's case is largely established. In this sense the credibility determination is the key to the outcome of this case. 
[33]
Two primary challenges to the credibility of the aggrieved person were made by Mr Emms either in his evidence or in cross-examination. 
[34]
First, that the aggrieved person suffers from an anxiety disorder and has imagined the second episode, that she is making Mr Emms the scapegoat for things that have gone wrong in her life, including his failure to take away her back pain. As to this, the aggrieved person acknowledged early in her evidence in chief that she suffers from an anxiety disorder and has made no attempt to conceal it or to minimise the nature of the disability. Her attitude to it is one of positivity and acceptance, not one of bitterness and blame. There is no foundation at all for the “scapegoating” suggestion. Nor is there any discernible reason for her to invent the second episode. 
[35]
Second, that she has been motivated to make false accusations in the hope of personal gain in the form of damages. As to this, we accept her evidence that when she spoke to a HDC advocate she was correctly told that only in rare cases would the Director take proceedings before this Tribunal seeking damages on behalf of an aggrieved person. It is also to be noted that, as earlier mentioned, it is the Director who decides whether damages are to be sought and the quantum of the claim. In addition, she had seen Mr Emms' home and knew of his disability. It would have been patently obvious to her that he had no money and no means of accumulating savings of any significance. The suggestion that she is a “gold digger” is entirely baseless. In our view she was genuine, sincere and credible when she stated in her evidence that her motivation in bringing and pursuing the complaint was to ensure that what she had experienced did not happen to anyone else. Her cooperation with the Director and her participation in these proceedings as a witness has been a substantial challenge given her anxiety disorder. We are of the view that she would not have subjected herself to a high degree of stress to pursue a monetary claim against a man who has no money and no assets. We accept that her motivation throughout has been the protection of others. 
[36]
We address now our view of Mr Emms as a witness. We acknowledge that he has been consistent in denying wrongdoing and comes across as credible in his knowledge of Shiatsu in which he has been trained and in which he accepts that he must work under the Shiatsu Practitioners Association Code of Conduct and Ethics. Other clients speak of his ability and professionalism. Overall, we have been deeply impressed by what Mr Emms has achieved in spite of his disability. Also in favour of Mr Emms is our finding that, contrary to the Director's assertions, he did keep clinical notes in respect of the aggrieved person and made those notes available to the Director at the meeting on 22 March 2011. This is consistent with the concession always made by the aggrieved person, namely that the Shiatsu session was properly and professionally conducted. But nothing we have accepted is necessarily inconsistent with events having unfolded as alleged by the aggrieved person during the subsequent massage session. 
[37]
While we take into account all the factors which are in favour of Mr Emms it must be remembered that the issue is whether the wrongdoing occurred in relation to the aggrieved person. There is no requirement that wrongdoing be established in relation to other clients as well. 
[38]
We put aside entirely the allegation that Mr Emms was drinking beer on the Saturday morning. It is not a matter central to the credibility issues and is not a matter pleaded by the Director in terms of the alleged breaches of the Code. It is matter in respect of which we can reach no conclusion. In legal terms the Director has not satisfied us that alcohol was consumed or offered for consumption. There are much more significant matters bearing on the credibility determination. It is to these we now turn. 
[39]
Integral to the evidence of Mr Emms is his acknowledgement that two hours after the aggrieved person left she telephoned to ask whether he would like to meet her for a drink at the pub. As the Shiatsu session ended at approximately 11:15am the phone call, on the account given by Mr Emms, would have been received by him between 1:15 and 1:30pm on the Saturday afternoon. Here the accounts given by Mr Emms and by the aggrieved person converge. She agrees she telephoned him at about 1:15pm but says that it was to tell him that he had acted unprofessionally, that she was in a lot of pain and felt that he had taken advantage of her vulnerability. She said at no time did Mr Emms apologise but he did say that it was a joke and that he wouldn't “do that with me again”. The aggrieved person hung up. 
[40]
The documentary evidence provides strong support for the account given by the aggrieved person that she was at Mr Emms' home from 10:30am to 12:45pm (the combined time taken for the Shiatsu session and the non-Shiatsu massage) and that because she was still in so much pain she immediately drove to an after hours medical surgery and made an appointment for 2pm to have her back pain attended to by a registered medical practitioner. The evidence in Exhibits 1 to 5 establishes: 
[40.1]
An appointment was made with Nelson Region After Hours and Duty Doctor Ltd for 01:50pm on Saturday 7 November 2009. 
[40.2]
Consultation with the medical practitioner is recorded as occurring at 2:45pm. The delay is consistent with the evidence of the aggrieved person that she had to wait to see the doctor and that while waiting had lain on the floor of the clinic because of the acute pain. 

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