Big Glory Seafoods v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 90 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN BIG GLORY SEAFOODS - A Division of SANFORD (South Island) Ltd DCA 382/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 17th day of April 1998 APPEARANCES: Mr C McCord for appellant Mr D Tui for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant's employee, Malcolm Wayne Leigh, wilfully inflicted a personal injury on himself in the course of his employment so as to be disentitled to cover under the Act pursuant to section 81 of the Act. 2 In this appeal Mr Leigh's employer, Big Glory Seafoods, is appealing against the decision of the Review Officer which confirmed the decision of the Corporation that Mr Leigh was entitled to cover under the Act in respect of the personal injury he suffered at his place of employment and that the circumstances of this injury did not come within the provisions of section 81 of the Act. In the lead up to this appeal Mr Leigh had been represented by solicitors but the Court was advised on the 16th of April that Mr Leigh did not wish to be heard at the hearing of this appeal. At the hearing of this appeal counsel for the respondent took the stance that the Review Officer was wrong in holding that the provisions of section 81 did not apply and supported the appellant's contention in that regard. However I find that this position does not alter the onus or requirements of the appellant to establish that the Review Officer's decision was wrong whether in fact or in law. Mr Leigh has been granted various entitlements under the Act in respect of his injury. These rights and entitlements are in jeopardy as a consequence of the issue which this Court is required to determine on appeal and therefore the interest of Mr Leigh in relation to this appeal must not be lost sight of. THE RELEVANT FACTS: At the date of the accident the appellant was aged 34 years of age. He was employed as a fish filleter by Big Glory Seafoods a division SANFORD (South Island) Ltd at its processing premises at Bluff. On the afternoon of 27 November 1996 Mr Leigh was at his place of employment carrying out his usual employment tasks. Apparently Mr Leigh 3 fancied himself as a kick boxer. This was the cause of some light hearted banter with his fellow workers from time to time. On the afternoon of 27 November John Roberts, a fellow worker, started "lipping" him about his kick boxing and the verbal exchange between them grew more heated. They were at the time working but stopped work to have this verbal exchange. What may have been light hearted banter or regarded as a joke soon became more than that between Roberts and Leigh and Leigh suggested to Roberts that they go outside or get into a ring and sort their differences out. This invitation was not accepted by Roberts but Leigh became so annoyed that he moved from where he was standing and went up to a freezer door and punched it, saying afterwards "Lucky it wasn't your head". It was this punch which caused a fracture of his right wrist and which was the injury for which he sought and obtained cover. Because it is relevant and important I will set out the written statements of four witnesses. Three of these statements were received and considered by the Review Officer and the fourth statement, being that of Mr Gillan, was read by Mr Gillan who attended the review hearing. Statement Of John Roberts "I was lipping Malcolm and he was returning it. Some days he starts it some days I start it. I was lipping him about his kick boxing. He said "If you want to take me on meet me in the ring and it will be legal". He wanted to step me out. 4 He was standing by the Vac machine. He said "Do you want to see how powerful I am?" He stepped to the freezer and punched the door, he didn't just swing around and hit the door. He said "Lucky it wasn't your head". He carried on working but he had a sore hand. I said that will teach you for punching doors." Statement by Teresa Trow "John Boy (John Roberts) was rarking up Malcolm about his kick boxing Malcolm was biting and was going on about how tough he was. John Boy was treating it as a joke but I think Malcolm was serious. He couldn't take what John Boy was saying to him and he became abusive. Everyone in the area was giggling about what was going on. Malcolm was standing close to the No.3 freezer. He stepped over to the freezer and punched the freezer door. He continued to work but he was obviously in pain." Statement from Craig Hutchinson John Roberts and Malcolm were being smart to each other as usual (they have their fits and starts). Thought it started off as a joke. It went on for about a quarter of an hour. He was at the bench and stepped across towards the freezer and punched the door. He said to John Roberts afterwards "Lucky that wasn't your head". I thought he deliberately punched the door. We knew he had hurt his hand because of the force he used to punch the door." Statement of R Gillan After lunch that day the filleters - Brine Vac Pack gang came back over to Big Glory to start vac packing salmon. Everything was going smoothly. The salmon packers were coming up to get the frozen fillets out of No.1 and John Roberts was being lippy to Mal. Mal retaliated by making similar remarks to John and trying to step him out (offering to fight him). I thought they were 5 having each other on as Mal is quite often saying things like that to different people. About half an hour after smoko John Roberts came up to get more fillets. Mal lost it and after a verbal exchange stepped across from the bench to No.3 freezer and punched the freezer door. Mal came to me and said I think I have broken my hand." It was swelling up and looked bruised. He continued to work. I knew by looking at his hand it was quite badly hurt so after talking to the Manager I got Mal and filled in an accident report. It should be noted that the claim initially made by Mr Leigh as to the circumstances of the accident was that he took a swing at Mr Roberts and missed and struck the freezer door instead. The witnesses established that the accident did not happen that way and Mr Leigh has not sought to pursue that contention any further. RELEVANT STATUTORY PROVISIONS "Arising in the course of employment", in relation to a personal injury, 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 6 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 service of a kind for which the Corporation is required or permitted to make payments under this Act, irrespective of whether or not it makes any payment in the particular case - "Arising out of and in the course of employment" means arising out of employment and arising in the course of employment: "Arising out of employment", in relation to a personal injury, 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 (6 ) 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." 6. Definition of work injury (1) For the purposes of this Act, work injury, in relation to any person, means personal injury arising out of and in the course of employment of that person; and includes a cardio-vascular or cerebro-vascular episode where: 7 (a) That episode is caused by physical effort or physical strain arising out of and in the course of employment; and (b) That physical effort or physical strain is abnormal in application or excessive in intensity for the person suffering it." 81. Wilfully self-inflicted personal injuries and suicide --- (1) No compensation, grant, allowance, or rehabilitation shall be payable or provided under this Act in respect of - (a) Any personal injury that a person wilfully inflicts on himself or herself, or, with intent to injure himself or herself, causes to be inflicted upon himself or herself, or death resulting therefrom; or (b) The death of any person where the death was due to suicide. (2) Nothing in this section shall affect the entitlement of any person where the personal injury or suicide was the result of mental injury or conduct of a kind described in section 8(3) of this Act." SUBMISSIONS Counsel for the appellant made two principal submissions. i) That Mr Leigh's injury was not a "work injury" within the meaning of the Act. ii) If it be found to have been a work injury then Mr Leigh wilfully inflicted it upon himself and is thereby excluded from cover under section 81 of the Act. 8 Counsel for the appellant submits that the various definitions in the Act which are relevant do not include any misconduct skylarking or negligence not related to the employment task being performed at the place of employment. He uses the example of the misuse of tools or equipment whilst performing an employment task. He further submitted that becoming involved in an argument and threats at workplace even whilst performing an employment task, is unrelated to the employment task therefore there is no nexus between the two. In essence counsel for the appellant submitted that the work injury must be one which arises out of something to do with the work act or work task. Counsel for the appellant submits that "wilfully" in this context means deliberately and intentionally. He further submitted it was axiomatic that a person intends the natural and probable consequences of his act. Therefore as a matter of common sense punching a steel freezer door with the force required to cause a fracture is clearly going to cause injury. Counsel submitted that the Review Officer was wrong in his finding that whilst Mr Leigh would have been aware of the possible consequences of his act it would seem that matters happened so quickly that when he hit the door he had done so in haste without forming any intention to create injury. On that basis whilst he deliberately hit the door it cannot be said that he wilfully set out to injure himself. Counsel submitted that the fact of deliberately walking up to and then punching the freezer door involved more than sufficient time to be fully aware of what he was going to do and the possible consequences thereof. Counsel for the respondent submitted that the injury was a work injury but that it was wilfully self inflicted within the meaning of section 81 of the Act. 9 Counsel for the respondent submits that the appellant's submission as to the circumstances of the meaning of work injury is untenable. He submits that the phrase "employment task" as used in para (a) of the definition of arising in the course of employment should be given a fair large and liberal interpretation to ensure that the object of the Act are achieved. He submits that to give employment task the restrictive interpretation contended for by the appellant would lead to absurdity. For example, if an employee were injured while on a toilet break, the appellant's interpretation would mean that this would not be a work injury, however much common sense would suggest that it would be. He further submitted that employment task must include the situation where the employee has indulged in misconduct. The definition section includes situations where an employee has indulged in misconduct. He submits that this exception colours the phrase "employment task". Counsel submits that Parliament would not have included a reference to misconduct in the definition of "arising out of employment" if it did not consider that a work injury could occur whilst an employee was indulging in misconduct and therefore not actually undertaking an employment task at the moment of injury. Counsel finally submitted that the phrase "employment task" encompasses all periods of paid employment whether misconduct was occurring or not. In those circumstances, he submitted that as Mr Leigh was paid for the period during which the injury occurred it must be accepted that his injury was a work injury. 10 DECISION The issue for determination in this appeal does involve the two matters identified by counsel namely, was it a work injury and was it wilfully self- inflicted. Was It A Work Injury Section 6 which defines work injury makes it clear that it is injury both arising out of and in the course of employment of that person. Each of those phrases is separately defined. "In the course of" means while any employment task is being performed at a place of employment. "Arising out of" means 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 the person may have indulged in or been the victim of misconduct, skylarking or negligence. The factual situation is quite clear that immediately prior to the act which caused the injury, Mr Leigh was engaged in his normal employment task at his place of employment. I find that the phrase "while any employment task is being performed" does not have the restricted meaning that counsel for the appellant would give it and that the word "while", in the sense that it is used in that phrase is used in the sense of "during the time that" and is not intended to be momentarily temporal. If it were otherwise then, as counsel for the respondent observed, a person could never be successful for the claim that may be the result of indulgence in misconduct, skylarking or negligence. 11 To put it in its context, I find that the phrase means during the time that a person is at his workplace and it is within the normal times that he is expected to be carrying out the employment tasks required of him as part of his employment. To suggest that Mr Leigh would actually have to be filleting a fish or carrying out some other workplace task when he struck the freezer door would in my view be an interpretation of the act which would be wholly contrary to the basic premise of statutory interpretation that the Act should be given a fair large and liberal interpretation. The other limb of the definition namely "arising out of employment", I find is met by the facts of this case. Mr Leigh was at his place of employment and the injury would not have occurred had he not been there and the fact that he may have been indulging in misconduct or skylarking is not relevant. Accordingly, I find that the injury sustained by the appellant was indeed a work injury for the purposes of section 6 of the Act. Was The Injury Wilfully Self Inflicted Counsel for the respondent referred to a High Court decision ACC v Stevens [1993] NZAR 322. In that decision the Court was required to consider the provisions of section 90 of the 1982 Act but the wording is exactly the same as in the present section 81 of the 1992 Act. However, that decision did involve consideration of the second alternative namely "with intent to injure himself causes to be inflicted upon himself". The facts of that matter were that the claimant, a prison inmate, allowed his cellmate to inject a prohibited drug into his arm. The injection went into an artery cutting off the blood supply to the hand, gangrene developed and resulted in the left hand being surgically amputated. In his judgement Justice Greig states: 12 "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 piercing 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. 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 13 sufficient to create intent and certainly not to override what is clearly the intent in this case, to obtain pleasure." Counsel accept that the section of the decision quoted above which I have placed in square brackets is obiter but nevertheless he submits it is persuasive. The meaning given to the word "wilful" in the Shorter Oxford Dictionary in the context that it appears in section 81 is "purposely, on purpose, intentionally, deliberately." An oft quoted meaning given to wilful is that in R v Senior [1899] 1 QB 283 where Lord Russell said wilfully means "that an act is done deliberately not by accident but so that the mind of the person who does the act goes with it". Counsel for the respondent submits that "wilfully" in section 81 does not require that the person must have intended to cause an injury to himself, rather "wilfully" includes circumstances such as the facts of Mr Leigh where the person was aware that an injury might occur if the act which actually caused the injury were committed, or the person's unawareness that injury might result was due to the person not caring whether injury would result or not. He submitted that wilfully as used in this section includes recklessness. That formulation is the one given by the House of Lords in R v Sheppard [1981] AC 394. It is noted that the particular offence being considered was "wilfully neglects any child in a manner likely to cause unnecessary suffering or injury to health". The inclusion of recklessness within the meaning of wilfully is not a meaning which New Zealand Law has necessarily given to the word wilfully in various other statutory provisions where it appears. An illustration of where the word wilful as used in the Crimes Act 1961 does include considerations 14 of recklessness as opposed to where it does not can be seen by looking at section 293 of the Crimes Act 1961 in contrast to section 201. Section 293 applies to certain crimes, in particular the crime of arson, which is the act of wilfully setting fire to any building etc. For that offence section 293 states "everyone who causes any event by an act which he knew would probably cause it, being reckless whether that event happened or not, shall be deemed to have caused it wilfully." The contrasting provision of section 201 of the Crimes Act is infecting with disease, where the relevant wording is "wilfully and without lawful justification or excuse causes or produces in any other person any disease or sickness". That provision was considered by both the High Court and Court of Appeal in R v Mwai [1995] 3 NZLR 149 where the Court of Appeal approved the High Court Judge's observation that wilfully in this section required actual intent by the accused and did not include recklessness. Counsel for the respondent submits that the wording in section 81(1) of the ARCI Act 1992, by using both the word "wilfully" and "intent", is signalling two distinct concepts and that "wilfully" must mean something different from intent i.e. actual intent and that wilfully must signify a lower standard of mental advertence and include recklessness. Counsel for the appellant submits that the meaning of wilfully as stated in R v Senior (supra) is appropriate and that on the facts in this case Mr Leigh's act was deliberate and that he would have been aware of the possible consequences of doing that act. As might be expected, an analysis of the wording of section 81(1)(a) gives the clue to what that section means or intends. I find that the wording means and intends that it is the injury which must be deliberately or wilfully 15 inflicted, not an act which is done deliberately or wilfully and has as a consequence an injury. Leaving aside considerations of unsoundness of mind etc. the section is designed to prevent cover for those embarking on self-mutilation or damage to themselves as a conscious or deliberate act. Thus, the object of the section is to deny cover to those who purposely or deliberately set out to inflict injury on themselves. That I find is a different concept from doing a deliberate act which has as an unintended consequence the causing of personal injury to oneself. In this latter concept the act was deliberate but the injury inflicted was not the object of the act. In the context of this provision I prefer the view that wilfully does not include recklessness. If it had been intended to include it, the legislature would have said so such as it did under section 293 of the Crimes Act. It is axiomatic that the onus of establishing that Mr Leigh wilfully inflicted the personal injury on himself lies with the party asserting it. The Review Officer found that the incident happened so quickly that when Mr Leigh hit the wall he had done so in haste without forming any intention to create an injury. He further held that whilst he deliberately hit the wall it cannot be said that he wilfully set out to injure himself. I find that the question, "did he wilfully set out to injure himself ?", covers the test for and the meaning of section 81. There is no evidence that Mr Leigh intended to damage or break his wrist. The overwhelming inference is that he did this act as a demonstration of his "machismo" and as an alternative to striking Mr Roberts, with the point being to demonstrate the damage he would have caused to Mr Roberts had he chosen to strike him rather than an inanimate object. 16 The fact that his act was one of stupidity does not bring it into the realm of it being wilful nor does it enable it to be construed as an act where he deliberately set out to injure himself. I think in fact the opposite was the case and that he was intending to show how he could in fact injure or damage some one or something else if he so chose. Thus I find that it was a deliberate act but the injury inflicted was not the object or the intention of the act. He did not deliberately set out to injure himself. It is only if it is this latter concept that section 81 applies. I am aware that the interpretation that I have given to the first alternative of section 81 is different from that which His Honour Justice Greig might give as evidenced by his remarks in ACC v Stevens (above). However, I find that His Honour's remarks were certainly obiter and that if this particular part of the provision had been fully argued, His Honour may well have come to a different conclusion. In the final analysis I do not consider that this Court is bound by the particular observation of His Honour as to the meaning of the first alternative in section 81(1)(a) of the Act. Accordingly I find that on the facts as I have found them section 81 of the Act does not apply and that Mr Leigh did suffer personal injury arising out of and in the course of his employment. This appeal is dismissed. DATED at WELLINGTON this S day of May 1998 M J Beattie District Court Judge BigGlory.doc(gm)