BOC Gases New Zealand Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 84/99 Appeal No. DCA 326/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BOC GASES NEW ZEALAND LTD Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARING at WELLINGTON on the 10th day of December 1998 DATE OF DECISION 8th April 1999 COUNSEL D J Fitzharris for appellant B A Corkill for respondent DECISION OF JUDGE P F BARBER The Issue On 29 October 1996 a tanker driver (Mr Urquhart) employed by the appellant suffered an injury to a toe. I am asked to decide whether the injury occurred in the course of employment and, if so, whether there was a break in the chain of causation caused by the employee walking 14 kilometres home that day. Naturally, if the employee's subsequent foot complications arose from the walk home, the appellant does not want them attributed to it for experience rating purposes. 2 This case was presented before me in quite some detail with much evidence (well tested by cross-examination) and relatively elaborate submissions. However, I see the evidence and issues as quite straightforward and not requiring a decision of great detail. The Decision of the Review Officer In a clear and full decision dated 27 July 1998 the Review Officer (Miss J Falconer) addressed the issue of the respondent's decision of 4 February 1998 declining to accept the injury as a work injury. She found that the injury was a work injury and revoked the respondent's said decision. She comprehensively covered the evidence and submissions and noted, correctly in my view, that the issue is largely one of fact and credibility and that the burden of proof lay on the employee to establish on the balance of probability that his injury was a work injury in terms of s.6 of the Act which reads:- "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 ...' .. " The Review Officer stated quite firmly that she found the employee to be a credible witness and accepted the incident of 29 October 1996 as described to her. Near the end of her decision she dealt with the chain of causation aspect in the following manner:- "I considered then whether the principle of novus actus interveniens applied in these circumstances. That is to say I considered whether the walk home constituted a new act that broke the chain of causation. No submissions were made on this point at the hearing and no evidence was provided. Mr Urquhart has given evidence that after his walk home he discovered that the initial blood blister caused by the accident had developed into a large blister in the same place. There is no evidence that Mr Urquhart suffered any other blisters as a result of the walk home. This suggests that the initial incident created a weakness, which but for the initial accident, would not have existed. I therefore find on the balance of probabilities that the chain of causation has not been broken by the walk home. The real cause of the personal injury was the initial accident at work. Issues about the pre-existing diabetic condition are not relevant as the eggshell skull principle applies in these circumstances." Further Evidence Inter alia, the appellant maintained that the employee has given a number of inconsistent accounts of experiencing the relevant injury. The employee gave evidence before me and (like the Review Officer) I find him a thoroughly credible witness. My assessment of him relates not only to his evidence in the context of the case, but also to his manner and demeanour when giving evidence and being cross- examined, and in terms of my 17 years of experience at endeavouring to ascertain 3 whether a person is telling the truth. I accept his evidence, which seems to me to have been consistently given at all stages, that he fell off the step of his tanker on 29 October 1996 while at work when leaning into the truck cabin to turn off its motor. His boots were wet and there was diesel fuel on the step and he slipped. The bottom step is recessed into the tanker's fuel tank and the other (top) step is on the top of the fuel tank. He slipped off the top step straight down the side of the fuel tank landing on the tips of his toes and leaning forward, swayed back and landed on his posterior. He landed on the ground upon his toes and his boots bent so far back that the steel toe caps hit the edge of the ball of his foot. He did not strike anything on the way down. The accident was that of his toes striking the ground with a resulting small blood blister. I accept the employee's evidence that he has never changed his story and that he has little to gain personally as to how the accident happened i.e. whether or not the accident happened at work made little difference to his compensation. Although it would assist a breach of employment claim which he had against the appellant, if the accident is a work accident, he did not seem to understand that at material times. In any case, I take that seeming self-interest aspect into account in assessing the credibility of his evidence. I understood that Mr Urquhart's claim for wrongful dismissal has now been resolved. The accident caused a small blood blister as part of a grazing that he experienced but there was no actual breaking of skin. After finishing work that day, 29 October 1996, the employee found that his car would not start and rang his wife to collect him. After waiting for 30 minutes for his wife to pick him up, he began walking home. Unknown to him then, his wife's car had broken down on the way to pick him up so that he walked approximately 14 kilometres home. Upon arriving home he discovered that he had a blister under his big toe where the small blood blister had been. He put some disinfectant into the bath and soaked the toe. For a few days after the development of the blister, it appeared that the blister was healing and the employee continued to attend work during that time. However the blister then worsened into a diabetic ulcer. On 8 November 1996 the employee first visited his GP and that day was admitted to hospital where he remained for approximately 5 weeks. During the early months of 1997 the employee was again admitted to hospital but the ulcer failed to heal. As I understood it the employee returned to work on about 14 April 1997 but got an infection in his toes on about 24 April 1997. He was readmitted to hospital and on 31 May 1997 the employee had two toes amputated and a third toe was amputated about two months later after complications with the skin graft. The employee has since had his foot amputated. Apparently, on the basis that the employee could no longer fulfil his driving duties, his employment with the appellant was terminated in July 1997. Inter alia, in cross-examination it was put to the employee that there was evidence from a fellow worker (who also drove CO2 tankers out of Kapuni) that he had met the claimant at a service station around mid November 1996 and noticed that the claimant was limping badly and that the claimant took off his boot exposing his ulcerated toe wrapped in tissue paper. The fellow worker asked what had happened and the claimant responded that he had developed a blister from a freeze burn as a 4 result of carbon dioxide entering his boot while he was blowing hoses at a brewery. That fellow worker was one of the witnesses before me. He seems a good friend of the claimant and seemed to be saying that as the claimant was unhooking hoses at the brewery he got a blast of carbon dioxide and slipped off the tanker but had received the freeze burns at some earlier incident at about that time. I accept that the fellow worker has no reason to mislead but I am satisfied that he is confused in his recollections and as to what he was told by the claimant. Indeed, as his evidence was adduced before me, I found it somewhat confusing. I accept the evidence of the claimant that about two months earlier some safety valves blew off a trailer to the tanker when the claimant was checking pressures, that CO2 gas escaped causing a dense white fog and the claimant had to feel his way through that fog to close the relevant valve, and that the gas froze the end of his toes under the steel caps of his boots but that did not cause any injury to the toes. Evidence was also given before me by the appellant's human resources manager and its health and safety manager. Essentially, they sought to show inconsistency in Mr Urquhart's account of his accident, that the relevant injuries were caused by his walk home and not by a work accident, that those injuries were heightened by the employee's diabetic condition, and that the employee's evidence was coloured by his seeking damages for wrongful dismissal. The evidence of those two persons is overcome by the credibility of Mr Urquhart and, in any case, seemed coloured by concern for the interests of the appellant, their employer. A summary of the submissions for the appellant Inter alia, Mr Fitzharris referred to the medical evidence as not being conclusive as to the cause of the blister which resulted in the later complications and not establishing when the accident occurred and only confirming the result of the injury. He referred to the medical practitioners basing their conclusions as to cause on what the employee told them. He referred to Dr Edwards advising on 27 February 1997 that the employee's diabetic control was good and that, if it were not for the ulcer, the employee would be back at work. Dr Edwards concluded that the ulcer was a direct complication of an injury which happened on 29 October 1996. Mr Fitzharris referred to the Corporation's branch medical advisor, Dr Jones, advising the Corporation that:- "It would appear both from the claimant and the attending Doctor that the injury was sustained in a fall from work truck. Consequences of this are covered by pre- existing medical conditions and the egg shell skull principle. On this evidence I feel that this man has cover under ACC for an accident that occurred in the course of his employment." Despite that advice of 13 June 1997 the Corporation wrote to the appellant advising "medical information obtained is unable to confirm however conclusively that the initial injury was sustained when (the employee) slipped off the truck or was due to footwear when he walked home. 5 Mr Fitzharris covered the relevance of the employee's claim for wrongful dismissal and the general matter of credibility and perceived inconsistent accounts of the injury but then addressed causation. Mr Fitzharris submitted that, if I accepted the events of 29 October 1996, there was a novus actus interveniens which broke the chain of causation between the work injury and the later complications of the loss of toes. It was submitted that even if a small blood blister and graze was suffered by the employee at work, the 14 kilometre walk home on the same day resulted in a much larger blister, and had it not developed, the consequences would not have been so serious. It is submitted for the appellant that the walk home was a new and independent cause of the employee's resulting serious complications and, therefore, the chain of causation (making the appellant liable for all consequences for experience rating purposes) has been broken. Mr Fitzharris submitted that if a small blood blister resulted from an injury at work, the 14 km walk home aggravated it to such a degree that it could be said to be a new and independent cause of the resulting complications. Mr Fitzharris seemed to accept that the employer needed to establish on the balance of probabilities that the novus actus interveniens had broken the chain of causation of the injuries from the workplace and submitted that onus is discharged by the claimant's evidence that the blister changed from a small blood blister to a large blister by the time he had walked 14 km home; and the blister was sufficiently serious by the time he got home to warrant some medical attention but no medical attention was given to the blister sustained at work. A Summary of the Submissions of the Respondent Mr Corkill referred to the above medical evidence and also to a report of Dr Edwards of 1 May 1998 which stated:- "Even a small blood blister secondarily infected could lead to ulceration and further nasty consequences." Mr Corkill helpfully dealt with the aspect of causation as follows:- "The Courts have commonly expressed the issue of novus actus interveniens in various ways - eg, has the intervening conduct "snapped the chain of causation" (Weld v Blundell v Stevens [1920] AC 956, 986 (HL)). The recent tendency has been to ask whether as a matter of "common sense" the conduct in question was a cause of the harm. In Sew Hoy & Sons Lid v Coopers & Lybrand [1996] 1 NZLR 392, the members of the Court of Appeal sought to expand on this inquiry. Mckay J recognised that causation means more than the mere creation of the opportunity to incur loss. To say that one decides by the application of common sense is not to provide a test, but rather to say it is a jury question. Henry J put the question as being whether in a commonsense practical way the loss claimed was attributable to the breach of duty (413). Thomas J thought that it is necessary to cease to think of causation in terms of requiring a "test" or as involving a single question (408-409). He said: 6 'The basic question remains whether there is a causal connection between the Defendant's default and the Plaintiff's loss ... [The answer to this question will not be resolved by the application of a formula but by the application of a Judge's commonsense. The Judge needs to stand back from the case, examine the facts closely, and then decide whether there is a causal link between the default and the loss in issue which can be supported by reasoned argument." A helpful decision in the personal injury field is Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006. There the Plaintiff suffered an injury caused by the admitted negligence of the Defendant. After attending the Hospital she felt shaken and the movement of her head was constricted by a collar which had been fitted to her neck. In consequence she was unable to use her bifocal spectacles with her usual skill and she fell while descending stairs, sustaining further injuries. The Court held that the injury and damage suffered because of the second fall were attributable to the original negligence of the Defendant so as to attract compensation. The Court also held that it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life and thereby be a cause of another injury and if foreseeability is required, that is to say, if foreseeability is the right word in this context, foreseeability of this general nature will suffice. It is submitted, with regard to the present case, that the medical opinion of Dr Edwards (1 May 1998) is significant, when he stated that even a small blood blister secondarily infected could lead to ulceration and further nasty consequences. The Court has also been referred to South Pacific Tyres Lid (148/98) where Judge Beattie held: "In this case I find that the Corporation can properly assert that it is entitled to treat and attribute the claimant's ongoing costs to the Appellant unless the Appellant can establish on the balance of probabilities that those ongoing costs cannot be said to be attributable to that hitherto established workplace injury. Thus, I accept and agree with counsel for the Respondent's submission that the onus is on the Appellant to establish that either or both the novus actus interveniens have broken the chain of causation of the injuries from the workplace and that which the claimant now suffers from are as a consequence of either or both of those novus actus interveniens." In short, the onus is on the Appellant to assert that causation was "snapped". Reasons for Decision I have already made it clear that I accept the evidence of and for the employee so that I find there was a work injury as the employee (Mr Urquhart) has described it. This leads to the remaining issue of whether the Review Officer was correct in determining that the real cause of the personal injury was the initial accident at work and not the walk home. I think the simple answer is that if the work injury had not occurred then the walk home by the employee would not have resulted in an aggravated blister. Also, the continued use of a foot following an injury (a small 7 blood blister) of the type described to the claimant, as a diabetic, is entirely foreseeable as feet are used for walking. Obviously, any trauma to the foot of a diabetic is potentially serious. This is not a situation where the cause of the injury was broken by the walk home. While it might be unusual for a person to walk 14 kilometres home - especially after the said work injury, the circumstances which led to the employee walking home are quite understandable in human living terms. His car broke down. His wife's car broke down. There was, apparently, no other suitable form of transport for the employee to go home, so he set off and found that he had to walk the 14 kilometres. Essentially then, the employee's accident left him with a blood blister which, if infected, could lead to ulceration and other untoward consequences, particularly for a diabetic. Somehow or another that happened. It is very likely that the said 14 kilometre walk home contributed to that untoward and unfortunate development. However, as a matter of commonsense, the suffering of Mr Urquhart arose from his accident of falling off the tanker truck. The small blood blister so gained became infected with sad consequences for him. There is clearly a causal link between the accident and the injury and suffering of Mr Urquart. The latter may have been heightened and aggravated by the walk home, but it may not have been. The medical evidence is inconclusive. I am in no doubt that the cause of the injury, and its consequence, was not broken or snapped by the employee having walked home on the day of the accident. The walk home was not a new and independent cause of Mr Urquhart's foot complications so as to break the chain of causation flowing from the fall from the tanker. There was no "novus actus interveniens" to snap that chain of causation because the loss of toes and foot emanated from the blood blister arising from the fall off the tanker, and not from the 14 km walk home. The injury consequences must, as a matter of commonsense, be attributed to the fall at work. It is forseeable that such an injury may affect Mr Urquhart's ability to walk home, a vicissitude of life, and thereby worsen the original injury. The walk home was not the cause of the harm. The cause was the fall off the tanker and the resulting small blood blister which did not heal but became infected. All the injuries and sufferings flowed from that and cannot be merely attributed to the walk home. The fall led to all the injuries and consequences. Accordingly, I find that the appeal fails. The decision of the Review Officer is correct. I would not expect the respondent to seek costs but, as a precaution, costs are reserved. Judge P F Barber District Court WELLINGTON dca32698.doc(nI)