Billings v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 86 196 HELD AT WELLINGTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND 67/95 / 2105 IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN BILLINGS Solicitors Appellant (Appeal No. DCA 16/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent Appeal on the papers DECISION OF JUDGE D A ONGLEY The issue in this appeal concerned the classification of an injury as a work injury. The injured person was employed by the appellant's private law practice and she twisted her left knee when turning around to answer a telephone at work. The Corporation regarded the injury as a work injury and the appellant applied for review. The review officer considered that the injury arose out of and in the course of employment. Work injury is defined in s 6 of the Accident Rehabilitation and Compensation Insurance Act 1992 to mean personal injury arising out of and in the course of employment of that person. The definition of work injury is extended in s 3 of the act in the following manner: "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 - 2- (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 service 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 - () 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 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 (8) 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 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 (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: There can be no dispute about the fact that this injury arose while an employment task was being performed at a place of employment. The appellant takes issue with the Review Officer's finding that the injury arose out of employment and argues that it is not an injury that would not have occurred but for the person being in her place of employment. The argument is put on the basis that the very same injury could have occurred in another place where there was a telephone, and there was no characteristic or feature which existed in the place of employment which allows one to say that the injury would not have occurred but for the injured person being in that place. The appellant submitted that there has to be a factor additional to the - 3 injury merely arising in the course of employment, that is to say more than the merely temporal circumstance that the injury happened while the person was performing an employment task. The appellant says that there must be a connection with the employment which is so strong that one must be able to say that it would not have occurred but for the person being in that place of employment, thus excluding an injury which could just as easily have happened in another place. The submitted rationale is that Parliament can not have intended that employers be saddled with experience rating implications in respect of injuries which really have nothing to do with their employment of the employee but have only coincidentally occurred at work or in the course of an employment task being carried out. In my view the interpretation suggested by the appellant is too narrow. In almost all cases injuries arising in the course of employment will also arise out of employment. I do not think that the need to satisfy both requirements is an indication of a statutory intention that one of the requirements will always involve separate and distinct considerations. If the appellant's argument is correct the consequences would be far reaching. The essential fact of this case is that the employee appears to have suffered a twisting injury which did not involve force through a separate agency. The fact that she was reaching for a telephone is not important, she may have been reaching for anything in the course of her employment. The logical extension of the appellant's argument would exclude from the classification of work injury all accidents of that kind. For example a worker tending to machinery who suffered a twisting, lifting or bending injury could be said to have suffered injury in a manner that could have occurred anywhere. If the appellant is right, such an injury would not be one that would not have occurred but for the person being in that person's place of employment and the accident would not be a work injury. Difficulty would arise even when an implement or other article imposes part of the force involved in the accident. For example a carpenter who injured his hand at work with a skilsaw could be said not to have suffered a work injury because the same kind of injury could have occurred if he used a skilsaw at home. Similarly if a cleaner suffered an injury while lifting a bucket of water. The need for the injury to have arisen out of the employment is no doubt imposed in order to distinguish injuries which occur during the period of employment but while the injured person is engaged on some pursuit of his or her own. The exceptions (a) and (c) in the definition of the phrase "arising out of employment" concern breaches of rules and skylarking. They encompass circumstances where the person acts improperly while engaged in an employment related activity of the kind that is encompassed in the definition of the phrase "arising in the course of employment". Those activities are distinguishable from the concept of a person doing something which could not be viewed as part of the employment function at all. An example of that might be a person who is injured while working at a private hobby during a lunch hour on work premises. An illustration is to be found in Sanford South Island Ltd 30/94 where an employee suffered a neck injury while putting on his motorcycle helmet to go home. - 4- The provision requires a fair large and liberal construction. It is broadly expressed and does not naturally accommodate the interpretation urged for the appellant. The particular injury in this case would not have occurred but for the person being in her place of employment. An identical injury could have occurred elsewhere in similar circumstances, but that is not the test posed in s 3 of the Act. The test is whether the injury would not have occurred elsewhere, not whether the injury could not have occurred elsewhere or whether a similar injury would not have occurred elsewhere. This kind of injury could have occurred anywhere at any time, but the particular injury would not have occurred unless the physical circumstances of the work accident had happened. I do not think that the argument relating to legislative intention with regard to experience rating can make any difference. Parliament may well have intended to assess experience ratings by aggregating those injuries which are caused by chance while an employee is at work, as well as those which are caused by special or particular conditions of employment. The occurrence of "chance" accidents may not have a significant impact on the fairness of the comparative ratings between different employers. When considering legislative intention it is interesting to compare the more precisely worded provisions in s 7 of the Act relating to personal injury caused by gradual process where the degree of connection between the injury and the workplace is carefully defined. The section does not include gradual process injuries that may be connected with the workplace but which are caused by a property or characteristic that is not peculiar to the claimant's workplace environment. If such a distinction was imported into the definition of the expression "arising out of employment" the appellant would have no difficulty. The comparison of those two different provisions tends to reinforce the conclusion that the broad effect of the definition of "arising out of employment" is intended to cover accidents contemporaneous with employment, even where the accident results from activity that the claimant would also do elsewhere. For the foregoing reasons the appeal is dismissed. No order is made for costs. DATED at WELLINGTON this 24 day of September 1996 D A Ongley District Court Judge