Accident Compensation Corporation v Downer New Zealand Limited

IN THE DISTRICT COURT HELD AT CHRISTCHURCH (2012] NZACC 390 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ACCIDENT COMPENSATION CORPORATION (ACR 624/11) Appellant AND DOWNER NEW ZEALAND LIMITED Respondent HEARD at CHRISTCHURCH on 12 November 2012 APPEARANCES Mr I Hunt, Counsel for Appellant. Mr D Campbell, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal is whether Grant Hutcheson, an employee of Downer New Zealand Limited, suffered personal injuries to his legs and shoulder in circumstances where those personal injuries were to be determined as being motor vehicle injuries, pursuant to section 35 of the Act, or whether they were work-related personal injuries pursuant to section 29 of the Act. It is the case that in its primary decision of 6 April 2011, the appellant granted cover to Mr Hutcheson for a work-related personal injury. Downer New Zealand Limited sought a review of that decision and in a review decision dated 16 September 2011, the Reviewer determined that the injuries suffered by Mr Hutcheson came within the category of motor vehicle injuries under the Act, and therefore ACC's primary decision was altered accordingly. 2 [3] The relevant facts in this case are not in dispute, and the dispute between the parties is involved wholly in what the facts of the accident event give rise to by way of cover for Mr Hutcheson. [4] Those relevant facts may be noted as follows: On 28 March 2011 Mr Hutcheson, an employee of Downer New Zealand Limited, was engaged in road compacting work on a public road at Half Moon Bay. Mr Hutcheson was operating a roller vehicle to roll the road shoulder, and as the roller vehicle was proceeding along the road edge it slid off sideways down the roadside and in rolling half over caused injuries to Mr Hutcheson's legs and shoulder. Fortunately, the injuries suffered were not serious. It is the case, as a matter of fact, that at the time of the roller causing injury to Mr Hutcheson, the roller he was operating was engaged in compacting the shoulder of the road and using the large roller wheel on the front of the vehicle for that purpose. The Court has been provided with photographs of the road where the accident occurred, and of the vehicle itself on its side off the side of the road. From the side of the road the surface falls away significantly, and it is when the roadside wheel of the roller went off the roadside that it tipped over on its side. [5] In his submissions for the appellant, Mr Hunt contended that the roller vehicle was engaged in the work of compacting the road and was not being used as a vehicle as a means of conveyance. He submitted that Mr Hutcheson was performing a work task at the time of the accident, and the work task involved the roller vehicle being engaged in its primary purpose of road-making and was not being used simply as a means of conveyance for its operator, Mr Hutcheson. 3 [6] Mr Hunt submitted that as the roller was being used for purposes other than as a means of conveyance, it did not come within the requirements of being a motor vehicle accident, and Mr Hutcheson's injuries were thereby excluded from being motor vehicle injury injuries by virtue of section 35(2)(b) of the Act. (7] Mr Campbell, Counsel for the Respondent, submitted that Mr Hutcheson's injuries were work-related personal injuries in that they were suffered at a place of work, as per section 28(1)(a), and were motor vehicle injuries as well, as they were suffered because of the movement of a motor vehicle, as in section 35(1)(a) and must therefore be treated as motor vehicle injuries by virtue of section 29(2). [8] Counsel submitted that Mr Hutcheson was using the road roller as a means of conveyance, and that is the very reason one operates a road roller, to convey oneself and the weight of the rollers up and down the roadway in order to compact it. He submitted that section 35(2)(b) did not apply as the road roller was not being used other than as a means of conveyance. He submitted that the task of compacting the road necessarily requires an operator/driver to be conveyed up and down the road in order to apply the weight of the rollers on the road. [9] Counsel finally submitted that there are significant similarities between operating a goods delivery vehicle and that of the road roller, where both involved the conveying of goods and a driver from A to B, and in the case of the road roller, the use of that vehicle as a means of conveying heavy compacting rollers and a driver from A to B. DECISION [10] The issue in this appeal requires close consideration of a number of statutory provisions in the Act relating to work-related personal injuries and motor vehicle injuries. The relevant statutory provisions, as I find them to be, are as follows: 28 Work-related personal injury (1) A work-related personal injury is a personal injury that a person suffers - (a) while he or she is at any place for the purposes of his or her employment, including, for example, a place that itself moves or a place to or through which the claimant moves; (8) This section is subject to section 29 (personal injuries that are both work-related and motor vehicle injuries). 4 29 Personal injury that is both work-related and motor vehicle injury ) An injury is a work-related personal injury, and is not a motor vehicle injury, if it - (a) falls within the definitions of both work-related personal injury and motor vehicle injury; but (b) is suffered in the circumstances described in section 28(1)(c) or (d) that relate to travel to or from employment or a place of treatment. (2) An injury is a motor vehicle injury, and is not a work-related personal injury, if it - (a) falls within the definition of both motor vehicle injury and work-related personal injury; but (b) is suffered in the circumstances described in section 28(1)(a) or (b). . . . 35 Motor vehicle injury (1) Motor vehicle injury - (a) means - (i) a personal injury suffered because of the movement of a motor vehicle; or (ii) a personal injury suffered because of a stationary vehicle being struck by another motor vehicle or some other means of conveyance; but .. . (2) However, motor vehicle injury does not include a personal injury suffered - (a) in the course of loading, unloading, repairing, or servicing a motor vehicle; or (b) in the course of any use of a motor vehicle other than as a means of conveyance; or (c) in the course of off-road use of a motor vehicle. . . . (4) This section is subject to section 29 (personal injuries that are both work-related and motor vehicle injuries). 11] Having considered the facts of this case, I find it to be clearly the situation where the road roller operated by Mr Hutcheson was being used for a purpose other than a means of conveyance, that purpose being to use the specific mechanical composition of the roller to compact the roadway. The road roller was being used as a compacting mechanism at the time that it, regrettably, fell off the side of the road. [12] In those circumstances, I find that the provisions of section 35(2)(b) are relevant, where motor vehicle injury does not include personal injury suffered in the course of any use of a motor vehicle other than as a means of conveyance. That 5 statutory provision, I find, has dominance over others where it can be considered that the injury was both work-related and by motor vehicle. [13] Whilst it is the case that Mr Hutcheson had to operate the roller vehicle for it to be able to carry out its intended purpose, in the circumstances which existed at the time of the accident the roller vehicle was being used for a purpose other than conveyance of him. He was at the time being engaged in the work purpose of compacting the roadside, and his status as the driver of the vehicle was at that time primarily for a purpose other than conveying him from A to B. [14] Having found as I have, that Mr Hutcheson's injuries cannot be considered motor vehicle injuries, they must be regarded as work-related personal injuries, suffered by Mr Hutcheson during the course of his work tasks, and therefore it is the case that Mr Hutcheson is entitled to cover under the Act for a work-related personal injury. [15] As a consequence of that finding, I direct that the review decision be hereby quashed and the appellant's primary decision determining that Mr Hutcheson is entitled to cover for a work-related personal injury, be hereby reinstated. In the circumstances of this case, I make no order for costs. DATED this 27th day of November 2012 M J Beattie District Court Judge