Harwood v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 64 /95 AT WELLINGTON DCA No. 158 / 94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 46/ 94 / 0524. Section 91 of the Act BETWEEN ALEXANDRA HARWOOD APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Date of Hearing: 28 March 1995 Date of Decision: 7 June 1995 Counsel: Counsel for appellant, Ms D. King Counsel for the respondent, Ms P. Zumbach Counsel for Objector, Miss Wild, for Auckland City Council RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the injury suffered by the appellant on 29 May 1993 was a "work injury" in terms of s.6 of the Accident Rehabilitation and Compensation Insurance Act 1992. 2. The appellant suffered personal injury by accident on 29 May 1993. At the time she was employed by the Auckland City Council as an Environment Health Officer. As part of her employment she was required to be on stand-by from time to time at weekends. For this purpose she was equipped with a mobile phone provided by her employer to enable her to respond immediately to any calls made through the Auckland City Council's answering service, regardless of her location. When on stand-by the appellant was paid an allowance. When she was called out, the appellant was paid overtime rates, the calculation of the payment commencing from the time the call was taken. On the day of the accident, the appellant was on stand-by, and with her husband had driven to a garage in Glenfield for reasons unrelated to her employment. A complaint had been made to the Council and the appellant was paged. While the car was being driven away from Glenfield by her husband, the appellant telephoned the complainant on her cell phone. The appellant's evidence is that the complainant wanted her to follow up her complaint at that time. The appellant's husband, made a statutory declaration dated 23 July 1993 in which he stated:- "She [Mrs Harwood] was speaking to a complainant about a potential health matter ... as I was driving, we were deciding if we needed to go into town in response to the complaint and Alex was ascertaining the information when the accident occurred ..." At p.3 of the transcript, at the review hearing Mrs Harwood's Counsel summarised the position as follows:- 3. 'They got into the car, Mr Harwood was driving so Mrs Harwood could continue to speak on the cell phone without creating a traffic hazard and they made their way to Wairau Road so that they could access the motorway en route to Remuera. This was not their original plan. Mr Harwood detoured from their planned route so they could go to Remuera to respond more fully to the complaint. A collision took place at 11.20 a.m." In a letter to the Corporation undated but apparently about July 1993, the appellant stated:- "Auckland City records will show that I was 'paged' at approximately 11.10 a.m. on 29.5.93 and the cellular phone account will show that I was still on the phone at 11.20 a.m., when the accident happened ..." In the appellant's application for review she stated she was obtaining details of the complaint at the time of the accident. She said:- "The sole reason we were there was to get to the motorway to go down to Remuera to actually deal with this call out complaint." When the accident occurred, the appellant had to advise the complainant she could not continue to deal with the problem and that someone would contact her later. In his decision dated 14 June 1994, the Review Officer found that the appellant was performing a work task at the time of the accident. He said:- 4. 'To succeed in her application for review Mrs Harwood must first show that the seat she was occupying in the family car her husband was driving had become a 'place of employment'. Though it is by no means clear, I am willing to accept that the seat of this car was or had become a place of employment. Mrs Harwood then meets paragraph (B) of the definition of arising in the course of employment' - an injury that occurs while any employment task if being performed at a place of employment. (She may or may not meet the definition of 'arising out of employment' - an injury that would not have occurred but for the person being in her place of employment.) However, the exclusion in paragraph (f) of the definition of arising in the course of employment applies. While Mrs Harwood was not travelling from a place of employment (the garage where she was beeped) she was travelling to a place of employment (other than her car seat) namely the premises of the complainant. Paragraph (f) states that an injury is not included while a person is travelling to a place of employment unless the car is provided, and driven by the employer or by an employee at the direction of the employer. Therefore the circumstances of Mrs Harwood's injury are excluded from the definition of 'arising in the course of employment' and therefore from the definition of 'arising out of and in the course of employment'. Therefore the injury does not meet the definition of work injury in Section 6 and her application for review is unsuccessful." Section 6 of the ARCI Act provides as follows:- "Definition of 'work injury' - (1) For the purposes of this Act, 'work injury', in relation to any person, means personal injury arising out and in the course of employment of that person ... 5. The Act provides that "arising out of and in the course of employment" means "arising out of employment" and "arising in the course of employment". "Arising in the course of employment" means:- "An injury that occurs - (a) While any employment task is being performed at a place of employment; or (b) During any temporary interruption of work for a meal or rest or refreshment, if the accident happens at the person's place of employment; or c) While the person is travelling between the person's places of employment by the most direct practicable route; or d) While the person is attending a course of education or training for the purposes of the person's current employment, and the person receives earnings from that employment in respect of that attendance; and any such place shall be deemed to be a place of employment of that person; or e) While the person is travelling between a place of employment and another place by the most direct practicable route for the purposes of necessary health care treatment or service in respect of a work injury, being health care treatment or services of a kind for which the Corporation or the exempt employer is required or permitted to make payments under this Act, irrespective of whether or not it makes any payment in the particular case - but does not include an injury that occurs - f) While a person is travelling to or from the person's place of employment (other than between places of employment) unless paragraph (e) of this definition applies or the person is an employee and the transport is provided by the employer and is --.. 6. driven by the employer or, at the direction of the employer, by an employee of the employer or of a related or associated employer for the purpose of transporting employees; or (g) While the person is in accommodation provided by or at the expense of the employer, or by or at the expense of the injured person where the injured person is not an employee, and in either case is not performing employment duties; or (h) While the person is participating, other than at the person's place of employment, in a recreational activity provided by or at the expense of the employer or sponsored by the employer, or by or at the expense of the injured person where that person is not an employee." "Arising out of employment" means:- "An injury that would not have occurred but for the person being in that person's place of employment, and it shall not be relevant that - (a) The person may be acting in contravention of any Act or regulations applicable to the employment, or in contravention of any instructions, or in the absence of instructions; or (b) The person may be working under an illegal contract; or (c) The person may have indulged in or been the victim of misconduct, skylarking, negligence, or been the victim of any force of nature." "Place of employment" in s.3 means any premises or place occupied for the purposes of employment and any premises or place to which an employee has access by virtue of the employment. 7. "Employment" is defined as being work engaged in or carried out for the purposes of pecuniary gain or profit; in the case of an employee, it includes any period of paid leave other than paid leave on the termination of employment. Miss King submitted the appellant would not have been at the location where the accident occurred had she not been responding to a call out. She was there in her capacity as an employee in the same manner that the appellant's employee was in a car yard in his capacity as an employee in Manawatu District Council v Accident Rehabilitation and Compensation Insurance Corporation, 28/6/94, Judge Middleton, District Court, Palmerston North, 31/94. Miss King contended that the appellant was in a place of employment when she had the accident. The fact that the words "premises" and "place" are listed in the alternative in the definition in s.3 of the Act does not mean that they are not necessarily synonymous. The word premises must mean the fixed location from which the employer runs its business. The word "place" she submitted must be construed broadly and means any location at which employment is carried out. The definition in the Act is not restricted and means any place where an employee is for the purposes of employment or to which the employee has access because of his or her employment. Miss King contended that as the appellant was in her vehicle, which was occupied for the purposes of employment, she was clearly in a place of employment. Miss King submitted that the appellant was being paid for being on stand-by and was therefore in employment for the whole period during which she was required to be on stand-by. Any place occupied by the appellant 8. during the stand-by period was occupied for "the purposes of employment". She submitted that the Act does not say that the place be occupied solely for the purposes of employment. Miss King contended that the phrase "place of employment" must be sufficiently broad and flexible to cover a variety of employment situations. In her submission, the appellant therefore satisfies two of the inclusionary criteria contained in s.3 of the Act: (a) and (c); and that none of the exclusionary criteria apply. Miss King submitted that whilst there is no definition of "employment task" in the Act an employment task must be a duty which is part of the employee's job description or schedule of duties being on stand-by and attending call outs. Remuneration for such duties was provided in her contract of employment. The appellant was not performing these tasks gratuitously or in the absence of express authorisation. Miss King contended that it follows that the appellant must have been performing an employment task when she was on stand-by and when on call out. As both the garage and the vehicle were places of employment, the appellant was in a "place of employment" performing an "employment task" when the accident occurred. Paragraph (c) states that an injury arises "in the course of employment" if it occurs "while the person is travelling between the person's places of employer by the most direct practicable route". The appellant was travelling from the garage to Remuera, where the complainant in the shop which had sold the offending material were located, and in Miss King's submission was travelling between places of employment by the most direct practicable route. 9. Miss King contended that the exclusion contained in paragraph (f) was not applicable to the appellant's circumstances because she was not travelling to or from a place of employment but between places of employment; and she was in any event in a place of employment. Ms Zumbach for the Corporation, submitted that for the injury to be properly classed as a "work injury" it is necessary to show that it:- (a) Arose while an employment task was being performed at a place of employment; or (b) Occurred while travelling between places of employment under the prescribed conditions, and (c) That the injury would not have occurred but for the person being in the place of employment. She submitted that the Review Officer, having found that the car was a "place of employment" should not have applied paragraph (f) of the exclusion in the definition of "arising in the course of employment". The appellant, however, on the finding of the Review Officer, was at a place of employment and the exclusion in paragraph (f) does not apply. The Review Officer was correct, however, in finding that the car was a "place of employment". The appellant was in her car while she was responding for a complaint. Ms Zumbach contended that a "fair, large and liberal" interpretation of the words "place of employment" is appropriate today. It is common place for people to be out in the field conducting their business by cellular 10. communication. It cannot be said that it is not work merely because it is conducted on a cell phone out of the office. The injury can be said to be one "arising out of employment". Ms Zumbach contended, as there was sufficient evidence to confirm that Mrs Harwood and her husband had detoured to investigate the complaint and therefore, they would not have been in that particular part of the motorway at that particular time were it not for the call out. Ms Zumbach submitted that in Manawatu District Council Judge Middleton was influenced in his decision by the element of responsibility - responsibility in that at the time the injury occurred the claimant was responsible for his employer's truck. She further submitted that Manawatu District Council and Sandford South Auckland Limited (District Court, Blenheim, DCA 30/94, 16 February 1995) are nearly on all fours with each other, except that in Sandford South Island Limited the claimant was leaving work in his own vehicle at the time the injury occurred. Miss Wild was not aware that the term place of employment as defined in the 1992 Act has been the subject of previous consideration. She submitted that cases relating to "arising out of in the course of employment" have no specific relevance to this statutory test, in which "place of employment" is a new phrase. Miss Wild further submitted that the legislative test will be' distorted and the flood gates would be opened if the unexpected performance of a work task transformed a private venue into a place of employment, as is being advocated on behalf of the claimant. 11. In reply, Ms Zumbach submitted that such a submission does not go far enough. In this particular case the appellant was actually working. She was investigating a complaint and at the time of the accident she was discussing the matter with the complainant over the mobile telephone. Miss Wild submitted that this interpretation would be contrary to the fact that paragraph (a) of the definition is a two stage test, requiring an employment task and a place of employment to be fulfilled. Miss Wild submitted that the same phrase is used in other paragraphs of "arising in the course of employment" and that if it is applied as widely in those paragraphs as is suggested on behalf of the appellant, the term would become a nonsense. With regard to paragraph (b), if a home or the car became a place of employment while there for private reasons, taking a break there would still be in the course of employment. Secondly, the definition specifically deals with when a motor vehicle injury arises in the course of employment, that is travelling between places of employment by the most direct route (paragraph (c)), or travelling to and from in limited circumstances (the exception in paragraph (f)). If Parliament intended that that use of a vehicle for these purposes would make the car itself a place of employment, then these specific provisions would not have been necessary. Miss Wild also submitted that it in keeping with policy to reject a claim' as being a work injury in these circumstances. While it is the policy of the 1992 Act for employers to be responsible for safety at work, and so pay premium space and experience rating, that should not be affected by injuries which are completely outside of the employer's control. It would also mean also that the earner's account would become obsolete. 12. Miss Wild submitted that it is clear that the appellant's car was at no time a "place of employment"; (a) the purpose she was in it originally was plainly for her own purposes (to buy a new tyre), (b) when she received the call from the complainant she was in a car for the purpose of travelling either home or to the complainant (to a work place). The purpose of Mrs Harwood being on the road remained to travel rather than to work. Miss Wild contended that it is equally clear that the appellant was not between places of employment at the time of the accident, but between the garage and the complainant. She had been at the garage for the purpose of buying a tyre, and the fact that she received a call out there did not change why she was there, and on the purpose test it was therefore not a place of employment. Miss Wild further submitted that the only paragraph of the definition which applies in this case is (f). The appellant was travelling in a private vehicle to a place of employment, being where the complainant was. Miss Wild contended that this is clearly a motor vehicle injury case. The issue is whether it is also work injury, and if so, out of which account it is payable. Miss Wild contended that the payment should be funded out of the motor vehicle account whether or not it was a work injury or a non-work injury because the ARCI Act 1992 provides that the costs of the claim must come out of the motor vehicle account. Section 100(3) of the 1992 Act provides that the ACC shall supply the funds in the employer's account in respect of, inter alia; "work injury other than motor vehicle injury suffered on. or before 1 July 1992". Section 113 has an equivalent provision in respect of the earner's account. Section 108 provides that the funds in the motor vehicle account shall be applied in respect of motor vehicle injury suffered on or after 1 July 1974, without any qualification or exclusion for work injury cases. 13. Ms Zumbach and Miss King submitted that the definition of motor vehicle injury clearly anticipates that in some circumstances a motor vehicle can be used other than as a means of conveyance. The appellant was not on a private trip because she and her husband had detoured as the result of the complainant's call. At the time of the accident she was travelling to the complainant and was therefore on work business. In my view, the position is that Mrs Harwood was required by her terms of employment to be on stand-by from time to time at weekends. For this purpose she was equipped with a mobile phone provided by her employer. As part of her employment she was required to respond to any calls made through the Auckland City Council's answering service and the mobile phone enabled her to do this regardless of her location at the time. Mrs Harwood was paid an allowance whilst on stand-by, and when on call, she was paid overtime rates, the payment of which was calculated from the time the call was taken. The Review Officer was correct to find that the car is a "place of employment". The Review Officer was also correct in finding that the appellant was engaged in an "employment task". I accept Ms Zumbach and Mrs King's submissions that response to complaints were part of the appellant's employment. The appellant received an allowance whilst on stand-by. From the moment she took the call, the appellant was no longer on stand-by but on' "call out" for which she was later paid overtime by her employer. I agree that paragraph (a) in the definition of "arising in the course of employment" applies, and the Review Officer was wrong to apply exclusion 14. (f). The requirements of "arising in the course of employment" are therefore established in my view. In my view, the injury would not have occurred but for the appellant being in her state of employment, and the injury can be said to be one arising out of employment. As the appellant stated at the review hearing, the sole reason that she and her husband had detoured was to investigate the complaint, and were it not for the call out they would not have been on that particular part of the motorway. In the Sandford South Island Limited case), Sandford South Island Limited was the employer of a claimant who suffered acute pain in his neck while putting his motor cycle helmet prior to leaving the appellant's premises following a day of work. The issue was whether he had suffered a "work injury". Judge Middleton considered the definitions and said:- "I consider that the words 'arising out of and in the course of employment' must envisage that both legs of that definition are established. An 'employment task' must be being performed at the place of employment at the time an injury occurs in order to bring it within the meaning of 'arising in the course of employment'. An 'employment task' is one which must be carried on for the purposes of pecuniary gain or profit and must therefore mean a work related job." Judge Middleton concluded that the only ingredient of all the definitions which could be said to apply to Mr Ryan was that he was within the appellant's premises at the time the injury occurred. 15. I agree with Ms Zumbach's submission that at the time the injury occurred to the appellant, she was responsible to her employer in that she was undertaking an investigation of a complaint which is part of her terms of employment. The requisite element of responsibility was present, and in my view, this injury was a work injury. The ARCIC Act provides that "motor vehicle injury" means:- "'Motor vehicle injury' means ... (a) Any injury occurring as a consequence of the movement of a motor vehicle; or (b) Any injury occurring as a consequence of a motor vehicle that is stationary being struck by another motor vehicle or other means of conveyance ... but excludes an injury suffered in the course of the loading, unloading, servicing, repair, or off road use of a motor vehicle and any use of a motor vehicle other than as a means of conveyance. 'Off road use' does not includes use of a motor vehicle that is off road as a direct result of it being out of control or its having been involved in an accident." Miss Wild, for the employer, has asserted that the injury Mrs Harwood . sustained must be categorised as a motor vehicle injury. However, I accept Ms Zumbach's submission that the definition of a motor vehicle injury clearly anticipates that in some circumstances a motor vehicle can be used other than as a means of a conveyance. In this case all the requirements for an injury to be categorised as a work injury are met, and whilst it is a fine line as to 16. whether the injury is categorised as a work injury or a motor vehicle injury, in my view, Mrs Harwood's personal injury by accident arose out of and in the course of her employment, and therefore her injury must be categorised as work injury. The appeal is therefore allowed. .. .. . (Jane H. Lovell-Smith) District Court Judge