Field v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 17 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HARRY FIELD of Whangarei Appellant (Appeal No. DCA 180/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Ac Respondent HEARING at WHANGAREI on the 24th day of November 1998 APPEARANCES CL Cook for appellant D Tui for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to cover under the Act for noise induced hearing loss. The appellant lodged a claim with the respondent on 24 February 1997 in which his specialist, Dr J Gathercole diagnosed noise induced hearing loss. The evidence disclosed that the appellant is now aged 71 and that between 1943 and 1945, after active service in the Netherlands underground movement, the Germans 2 forced him to work in a munitions factory. After the war and between 1947 and 1950 he underwent compulsory military training in the Netherlands Army. The appellant then migrated to New Zealand and obtained work between 1950 and 1954 in the Motukaraka Dairy Factory. He then became a self employed farmer using noisy machinery including bulldozers and other normal farming machinery and his farming activities included the blowing up of tree stumps with black powder. He did not at any time wear protective gear. The appellant indicated that the work in the munitions factory was extremely noisy and the factory was the subject of bombing by the allied airforces. He said that his training in the Netherlands Army involved firing rifles and machine guns. Dr Gathercole provided the respondent with a hearing loss report dated 17 April 1997 in which he stated: "History: Mr Field has noticed hearing loss progressively worsening over the years. He has no problems hearing in a group/crowd situation or where there is background noise. The radio needs to be turned up loud. He has no tinnitus or other ear symptoms except that loud sounds irritate him. . . . Military Services: He served four years in the Dutch Army and then spent two years in a prison camp machine factory. . .. COMMENT: Mr Field has evidence of noise induced hearing loss. It is related to occupational factors as well as military service. The percentage loss is calculated as shown and upgrade of his binaural hearing aids is recommended." Dr Gathercole's assessment of the noise induced hearing loss which he considered attributable to occupational factors was: "Total loss 52.6% Age 4.9% Military loss 20% NIHL 27% " When the respondent requested additional information regarding the appellant's exposure in the German's munitions factory he replied: "I wish to advise while working in the German Munitions factory as a prisoner I was subject to extreme exposure to loud noise. Steel parts were conveyed directly from the steel foundry to be cleaned. These parts were then placed in fast revolving steel drums and on completion of the cleaning process were emptied and refilled with the next load. This job required constant attention and the cleaning process continued for 24 hours a day. I worked 7 days a week for a minimum of 3 12 hour period with only a half hour break while the drums continued to revolve. We were under constant surveillance by German Guards so there was no 'let up'. ... While in the Dutch Army undergoing Military Training I was in the infantry. Exposure to firing was for training purposes only. On arrival in New Zealand I was employed in the Dairy Factory and subject to further noise with the butter churners, steam engines and can washers. Then followed work with farm machinery in the development of land." On 22 July 1997 the respondent notified the appellant: "For a noise induced hearing loss claim to be acceptable it must be established that the hearing loss has arisen out of and in the course of employment. In your case it appears evident that your condition was caused by non work related activities. Consequently this claim has been declined for cover, as it does not meet the criteria for personal injury caused by gradual process, disease or infection arising out of and in the course of employment, as defined by Section 7." The appellant applied for a review of that decision. The Review Officer concluded that the elements of section 7(1)(a) and (c) were satisfied but that the appellant had not satisfied the provisions of section 7(1)(b). The Review Officer concluded that the non employment activities which contributed 24.9% of Dr Gathercole's assessment was the result of non employment activities, being the exposure in the munitions factory and Army service. It is against that decision which the appellant now appeals. It is accepted by both counsel that the only issue is whether or not the appellant has satisfied the test under section 7(1) (b). Ms Cook submitted that the appellant does satisfy the provisions of section 7(1)(b) and that the provisions of section 11 are also relevant in that the appellant had suffered personal injury caused by gradual process, disease or infection from exposure before 1 April 1974 which arose out of and in the course of employment for which should therefore be entitled to cover under the Act. Ms Cook submitted that the purpose of section 7(1)(b) was to disentitle an applicant who might have or be engaged in a noisy hobby or past time which could cause the difficulty. She submitted that in the case of this appellant Dr Gathercole had been able to separate the hearing loss caused by work in the munitions factory and the Dutch Army with his post New Zealand hearing loss. She submitted that the relevant period was the period between 1950 and 1977 when the appellant had worked in a noisy dairy factory and then as a self employed farmer. 4 Mr Tui submitted that by virtue of section 9 cover is extended for personal injury suffered on or after 1 July 1992 outside New Zealand for any person who is ordinarily resident in New Zealand and that section 135(5) preserves the entitlement of claimants who suffered personal injury prior to 1 October 1992 provided that that personal injury came within the meaning of the 1972 or 1982 Acts and the 1992 Act. He submitted that it was clear that prior to 1950 the appellant was not ordinarily resident in New Zealand for the purposes of cover under the Act. Mr Tui submitted that it was necessary for the appellant to demonstrate that factors which are not compensatable under the Act have not contributed to a material extent to his noise induced hearing loss. He submitted that on that basis the work in the munitions factory was causative of the appellant's problem but was a non work related factor which did not qualify for cover under the Act. The background to this appellant's problem is somewhat unusual because of the fact that by the vicissitudes of war the appellant was forced to work in the munitions factory. While that may not be deemed to have been "employment" in the normal sense it was employment forced upon the appellant because of the war. I consider that in those circumstances the position of this appellant is quite different from that of most appellants and that a fair and liberal approach should be adopted in determining whether that work constituted a "non employment activity" which would disqualify the appellant from cover under section 7(1)(b). I consider that the justice of the case requires a liberal approach to be taken to the fact that he was a forced labourer undertaking work which he might not have chosen to do but which he had to do because of his position. Dr Gathercole has been able to provide an assessment of the extent to which that work has contributed to the appellant's present condition and the extent to which his subsequent work in New Zealand has contributed to his condition. I consider therefore that the appellant has satisfied section 7(1)(b) and is entitled to cover for noise induced hearing loss to the extent that Dr Gathercole has assessed that 27% of his problem is attributable to occupational factors and is not the result of non employment activities or the environment. The appeal is allowed and there will be costs to the appellant of $850. DATED at WELLINGTON this 28 day of January 1999 A W Middleton District Court Judge dca180-98.doc (nr)