Accident Rehabilitation and Compensation Insurance Corporation v Stephens

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 196 /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 ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Appellant (Appeal No. DCA 45 /98) AND HENDON STEPHENS Respondent HEARING at AUCKLAND on the 19th day of August 1998 APPEARANCES Mr D Tui - counsel for appellant Mr G Muller - counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the respondent suffered personal injury by accident within the meaning of that word as it is defined in the Act. 2 Background Facts On 28 June 1997 the respondent then aged 61, suffered low back strain at his home. On that date he was climbing up some stairs at his home when his grandson called out to him and he turned round suddenly to respond. It was after his sudden turn that he developed acute low back pain. It was the opinion of Dr McAuslan, Orthopaedic Surgeon, that this movement caused a disc herniation causing a compression of the right L5 nerve root. Dr McAuslan stated that it was quite likely that as he twisted around quickly there was some direct damage to the nerve root. Although there is evidence of some degenerative change in his back, the medical evidence is clear that his present incapacity is as the consequence of this twisting movement which occurred in June 1997. In the light of the medical evidence and the respondent's explanation of how his injury occurred, the Corporation determined that the respondent's injury had not been caused by an accident. It therefore declined to grant cover. The respondent sought a review of that decision. The Review Officer held that the respondent had suffered an accident and had suffered personal injury as a consequence of that accident. Regrettably the Review Officer did not give any reasons as to how he came to that decision, simply confining himself to the statement that "the claimant satisfies the criteria under the Act". It is from that decision that the Corporation appeals. "Accident" is defined in s.3 of the Act and means: 3 "a specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events". Counsel for the appellant submits that the fact of "accident" being defined in the 1992 Act indicated that the legislature signalled a clear departure from the much broader interpretation of that word which had occurred under the 1982 Act. Under that latter Act "accident" was not defined and the jurisprudence on it looked to the common law definition of "an unlooked for mishap or an untoward event" for its source meaning. Counsel submitted that the inclusion of a requirement that there be some force or resistance external to the human body which causes the personal injury indicates that a much more restricted interpretation of the word "accident" is required. Counsel submits that the injury sustained by the respondent was disc herniation, that it was sustained by him without any application of a force or resistance external to his body. Counsel refers to two decisions, firstly that of His Honour Judge Imrie in Auckland City Council -v- ARCIC (46/95) where His Honour held that the force of gravity was a force or resistance external to the body. The particular circumstances of the injury suffered by the employee was the slipping over and sustaining a lower back strain. His Honour considered that the force of gravity which forced the body to the ground causing the strain by virtue of the body coming into contact with the path was an "accident" within the definition. Counsel for the appellant contends that the Auckland City Council decision can be distinguished from the present case in that there was no application of the force of gravity in the circumstances of the twisting movement. Counsel also referred to the decision of His Honour Judge Middleton in Coeur Gold NZ Limited (73/97). In that case the claimant experienced back pain after bending down to lift an empty bucket, but did not actually lift the bucket. Judge Middleton held: "While counsel has submitted that the incident in which this worker was involved is similar to the position of the worker in the Auckland City Council case, I do not accept that submission. I do not consider that in this case the worker suffered any external resistance to his body and that what occurred was, as submitted by counsel for the Corporation, that the worker only moved his body and that it was some internal force within the body which effected his back ... In terms of the definition of 'accident', I do not consider that there was sufficient resistance external to the worker's body which could be said to have resulted in the personal injury" . Mr Muller, counsel for respondent sought to distinguish the Coeur Gold case from the present case on its facts. He submitted that an analysis of the evidence in the Coeur Gold case indicates that the act of bending over did not cause the prolapse of the disc, that was already present as a pre-existing condition and that all the stooping movement did was to make the worker aware of the pre- existing injury. It was on that basis that he submitted, His Honour found that worker had not suffered injury from the application of a force external to his body as there was a pre-existing injury and therefore the force of gravity could not have resulted in the worker suffering injury. Counsel submitted that in the circumstances of this case the act of twisting caused the injury and that that was an instance of the forces of gravity at work. In reliance on the Auckland City Council decision he submitted that this was sufficient for it to come within the definition of "accident". Decision The definition of "accident" in the Act requires that there be the application of a force or resistance external to the human body. It matters not that that force or resistance is natural or artificial. Being struck by a bolt of lightening would be considered no differently than electrocution from contact with a live wire. Furthermore that external force or resistance can be applied by the injured person himself or through some external agency, animate or inanimate. The common thread that must exist is that the source of the force must come from without and not within the human body of the injured person. With the greatest of respect to His Honour Judge Imrie, I do not entirely agree with his analysis of the role of gravity in the accident which occurred to the worker in the Auckland City Council case. Gravity was not the external force which caused the injury, rather it was the human body heeding the law of gravity which caused it to strike the external force of the pavement and it was that hard pavement which was the cause of the injury, not the force of gravity. Thus I find that gravity per se is unlikely to ever be the actual force or resistance which causes the injury. It would require another force or resistance external to the body to physically cause the injury in an accident involving the body complying with the law of gravity. Equally of course, an injury could occur during an instance where the human body is defying the law of gravity. Thus gravity alone is unlikely to ever be the sole cause or source of the accident. In this present case the law of gravity is entirely neutral. The evidence is clear that the act of twisting caused disc herniation and the compression of the right L5 nerve root. This injury did not occur during the application of any external force or resistance such as lifting a heavy object, or falling and striking a hard surface. There was no impact between the respondent's body and any other force or source of force or resistance whatsoever. It is probably true from a 6 medical perspective that there was the interaction of two or more body parts in the respondent's back which interacted one on the other causing the compression but as previously noted, such interaction was internal only and not from any external force. Accordingly, I find that in the circumstances of the twisting movement which the respondent carried out and which caused the disc herniation, such did not constitute an accident as defined in s.3 of the Act. For this reason the respondent cannot have cover under s.8 of the Act and the Review Officer's decision is hereby revoked. DATED at WELLINGTON this + day of September 1998 M J Beattie District Court Judge dca45998.doc(sh)