Downer New Zealand Limited (Formerly Downer EDI Works Limited) v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2013] NZACC 175 ACR 624/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN DOWNER NEW ZEALAND LIMITED (FORMERLY DOWNER EDI WORKS LIMITED) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: Decided on the papers at Auckland Judgment: 19 June 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC Application [1] This was an application for leave to appeal to the High Court on a question of law proposed in these terms: Can a decision maker, who is determining whether or not a personal injury is excluded as a motor vehicle injury under s 35(2)(b) of the Act, have regard to the purpose, or the primary purpose, of the use of a vehicle when considering whether or not that vehicle was being used 'as a means of conveyance"? [2] The application relates to the 27 November 2012 judgment of Judge Beattie where the issue on appeal was whether an employee of the respondent who suffered personal injuries to his legs and shoulder while ACCIDENT COMPENSATION CORPORATION v DOWNER NEW ZEALAND LIMITED DC AK [2013] NZACC ACR 624/11 [19 June 2013] operating a road rolling vehicle should have his cover recognised as related to motor vehicle injury pursuant to s 35, or as work-related pursuant to s 29, of the Act. The statutory provisions [3] These are; 28 Work-related injury (1) A work-related personal injury is a personal injury that a person suffers - (a) while be or she is at any place for the purpose of his or her employment, including, for example, a place that itself moves or a place to or through which the claimant moves; (8) This section is subject to s 29 (personal injuries that are both work-related and motor vehicle injuries) 29 Personal injury that is both work-related and motor vehicle injury (1) An injury is a work-related personal injury, and is not a motor vehicle injury, if it - (a) falls within the definitions of both work-related personal injury and motor vehicle injury; but (b) is suffered in the circumstances described in s 28(1)(c) or (d) that relate to travel to or from employment or a place of treatment, (2) An injury is a motor vehicle injury, and is not a work-related personal injury if it - (a) falls within the definition of both motor vehicle injury and work-related personal injury; but (b) is suffered in the circumstances described in s 28(1)(a) or (b) . .. 35 Motor vehicle injury (1) Motor vehicle injury - (a) means - (i) a personal injury suffered because of the movement of a motor vehicle; or (if) a personal injury suffered because of a stationary vehicle being struck by another motor vehicle or some other means of conveyance; but (2) However, motor vehicle injury does not include a personal injury suffered - (a) in the course of loading, unloading, repairing, or servicing a motor vehicle; or (b) in the course of any use of a motor vehicle other than as a means of conveyance; or (c) in the course of off-road use of a motor vehicle ... (4) This section is subject to s 29 (personal injuries that are both work-related and motor vehicle injuries), The facts as found [4] These (as found by Judge Beattie) I summarise as follows: On 28 March 2011 Mr Hutcheson, an employee of Downer New Zealand Limited, was engaged in road compacting work on a public road at Half Moon Bay. Mr Hutcheson was operating a roller vehicle to roll the road shoulder when, as the roller vehicle was proceeding along the road edge, it swivelled sideways down the roadside and, in rolling half over, caused injuries to Mr Hutcheson's legs and shoulders. At the time the roller caused injury, the roller Mr Hutcheson was operating was engaged in compacting the shoulder of the road, the large roller wheel at the front of a vehicle achieving that purpose. The road surface in question fell away significantly and it was when the roadside wheel of the roller went off the roadside edge that it tipped over on its side. Arguments on original appeal [5] Counsel for the Corporation had argued that the roller vehicle was engaged in the work of compacting the road, not as a means of conveyance. It was engaged in its primary purpose, that of road making, rather than simply being as a means of conveyance for Mr Hutcheson. [6] On the other hand, counsel for Downer had submitted that Mr Hutcheson was using the roller vehicle as a means of conveyance, the very reason for the operation of a road roller being to "convey oneself and the weight of the rollers up and down the road in order to compact it", Judge Beattie's view on appeal [7] Judge Beattie held as follows: [1 1] Having considered the facts of this case, I find it to be clearly the situation where the road roller operated by Mr Hutcheson was being used for a purpose other than a means of conveyance, that purpose being to use the specific mechanical composition of the roller to compact the roadway. The road roller was being used as a compacting mechanism at the time that it, regrettably, fell off the side of the road [12] In those circumstances, I find that the provisions of s 35(2)(b) are relevant, where the motor vehicle injury does not include a personal injury suffered in the course of any use of a motor vehicle other than as a means of conveyance. That statutory provision, I find, has dominance over others where it can be considered that the injury was both work-related and by motor vehicle. [13] Whilst it is the case that Mr Hutcheson had to operate the roller vehicle for it to be able to carry out its intended purpose, in the circumstances which existed at the time of the accident the roller vehicle was being used for a purpose other than conveyance of him. He was at the time being engaged in the work purpose of compaction of roadside, and his status as the driver of the vehicle was at that time primarily for a purpose other than conveying him from A to B. [14] Having found as I have, that Mr Hutcheson's injuries cannot be considered motor vehicle injuries, they must be regarded as work- related personal injuries, suffered by Mr Hutcheson during the course of his work tasks and, therefore, it is the case that Mr Hutcheson is entitled to cover under the Act for a work-related personal injury. Applicant's argument [8] In their written submissions counsel on both sides of this case wrote at great length, relatively speaking, but in neither case do I find it necessary similarly to rehearse the propositions raised each way. [9] In essence (and presaging the arguments that would be run were leave to appeal on a question of law granted) counsel for Downer; Accepted that there was no dispute but that personal injury was suffered by Mr Hutcheson because of the movement of a motor vehicle in the form of a road roller; but Asserted that this must amount to a motor vehicle injury unless s 35(2) which excludes a 'personal injury' from categorisation as a 'motor vehicle injury' where it is suffered 'in the course of any use of a motor vehicle other than as a means of conveyance' applies; and Here the argument signalled was that "other than as a means of conveyance" plainly to referred to a use that did not involve any element of personal conveyance. Case for the respondent [10] Rendered down to its bare essentials . the presaged counter-argument was that, fundamentally, the answer to the question posed by s 35(2)(b) required a case-specific factual evaluation, and thus determination, which indeed the judge had made. [11] What was in any event plain was that the intention of the legislation was to exclude from categorisation as a motor vehicle injury a personal injury event suffered in the course of the use of a specialised vehicular work machine for its designed work purpose, Discussion [12] I accept that the division of motor vehicle accidents into those that are work-related and those that are not has a cost allocation purpose and, for those concerned, potentially significant fiscal consequences. Thus I recognise that an application made in that context might be identifiable as reaching beyond the particular case and thus have wider significance. [13] But in this case I simply cannot see how (and I make clear that my focus here is on the particular set of facts that have arisen) it could logically be contended that a personal injury to the operator of a road roller when that was in use for its designed (contribution to road or paving construction) purpose could be open to identification as other than a work-related accident. [14] On the facts as found by the judge the operator injured here was simply on board because this was a motor vehicle (in the form of a road-making machine) that achieved nothing unless in human hands. [15] So where, in my view, the application is confronted with an insurmountable difficulty lies in the endeavour to have the provisions in question construed in a fashion surely destructive of the obvious rationale for the statutory dichotomy. [16] I say that because, were it fairly arguable that Downer's approach to this case was the right one, then the object of the division of vehicle-related accidents into two mutually exclusive classes would surely be significantly subverted. [17] I suggest that sight should never be lost of s 5 of the Interpretation Act 1999. That primarily requires that the meaning of an enactment be ascertained from its text and in light of its purpose. [18] Here, it seems to me, the surely obvious purpose would be lost to sight were the provisions in question to be construed (relative to a factual situation just like the present) as Downer would seek to have them be. Result [19] In my view, in finding the facts as he did and applying the statutory provisions to those findings, Judge Beattie proceeded in terms of both fact and law in terms unassailable. [20] Thus, so I conclude, this is not a case with which the High Court should be troubled. [21] The application is accordingly declined. Roderick JoyceQC District Court Judge