John Butcher Contracting v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 134 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOHN BUTCHER CONTRACTING of Christchurch Appellant (Appeal No. DCA 414/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 12th day of May 1999 APPEARANCE/COUNSEL P M James for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the worker (R C Lovett) suffered a work accident on 26 September 1997. The worker lodged a claim with the respondent in October 1997 in which he stated that in the course of his employment on 26 September 1997, he was lifting a compactor off a trailer while returning it to the premises of Christchurch City Hire Limited. He was at the time employed by the appellant who disputed that a work injury had occurred. 2 The worker endeavoured to work for about one week after the accident and then consulted his General Practitioner who identified problems in the back and he was subsequently referred to Dr Barrie Tait, a Specialist in Musculoskeletal Medicine. His examination confirmed back problems consistent with the alleged incident. On 27 March 1998 the respondent notified the appellant that it accepted that the worker had suffered a work injury on 26 September 1997. The appellant applied for a review of that decision. The Review Officer heard evidence from Mr Butcher; the worker; the worker's son, Mr D Lovett and from Mr J Pomare, another employee of the appellant. The appellant submitted a number of hire agreements from Christchurch City Hire Limited detailing various items of equipment hired by the appellant during September 1997. The Review Officer held that on the evidence of the worker, Mr Pomare and Mr D Lovett that the worker had suffered a work injury on 26 September 1997 when returning the compactor to Christchurch City Hire Limited. It is against that decision which the appellant now appeals. As the issue before the Court is a factual one, the Court has to take care in considering the totality of the evidence. In brief, the worker had stated that he and Mr Pomare had been working together on a site in Kahu Road which involved digging across the road and laying pipes. The worker and his son and Mr Pomare said that they had been engaged in that work for the whole of the week leading up to the day in question which was a Friday. However, on 26 September 1997, the worker and his son were required to go to Kaiapoi to place some ladders in manholes. The worker and his son said that they returned to Kahu Road just after the morning smoko and Mr Butcher conceded that the worker had come back to Kahu Road but he said "a bit after lunch". Whatever the situation is, it must be accepted that they were at Kahu Road with Mr Pomare on the afternoon of Friday 26 September 1997. Mr Butcher's evidence was that no compactor had been hired from Christchurch City Hire Limited that week because there were no dockets or invoices for the hire of a compactor in that week. However, in his evidence to the Review Officer, he conceded that in relation to the dockets produced by Christchurch City Hire Limited " there could be a mix up but there was ...". Mr Butcher produced various copies of hire dockets and invoices to the Review Officer which he submitted established that no compactor had been hired during the week concerned. He said that it was the normal procedure at the Christchurch City Hire Limited that when he or one of his employees picked up hire machinery they were required to sign a hire docket which was also signed when the machinery was returned. This evidence was contradicted by both the worker, his son and Mr Pomare whose evidence was that they were all well known by the employees at Christchurch City Hire Limited and if things were busy, machinery was often taken just by a wave of a hand and nothing was signed either when taking or returning the machinery. The worker said that on the afternoon of 26 September 1997, after the compactor had been used in compacting the trench which crossed onto the street, he and Mr Pomare then returned it to Christchurch City Hire Limited and in the course of removing it from the trailer he felt a twinge in his back. 3 The worker conceded that the following day he had hired a rotary hoe for his own use from Christchurch City Hire Limited and in returning that, and in the presence of Mr Hank De Leur, the Manager of Christchurch City Hire Limited, he again suffered a twinge in his back when removing the hoe from his trailer. As the issue revolves around the evidence I think that it is necessary that I should quote some extracts from the transcript of evidence. The Review Officer was Mr A J Vivian and on page 15 of the transcript of evidence there appears the following evidence: "MR VIVIAN: Was there any reason for them to be using a compactor in that week? MR BUTCHER: No not - no we only used a compactor when we - when it was required and we didn't require one that week. MR VIVIAN: Was the job finished in Kahu Road that week? MR BUTCHER: No, no we had continual work there but depending on the type of work we were doing. MR VIVIAN: Which is what, digging holes, putting drains in. MR BUTCHER: Putting pipes in and yeah. MR VIVIAN: So you'd use a compactor for closing up the ditch. MR BUTCHER: Yeah we use a compactor to seal the road yeah. MR VIVIAN: And that didn't happen on that week, do you ... ? MR BUTCHER: No it wasn't - that wasn't um - we were probably doing some concrete work or pipe work or something. MR VIVIAN: So it was your view that they would have worked at Kahu Road until Thursday. They would have gone - Mr Lovett would have gone to get ladders on Thursday afternoon" Later in the transcript the worker disagreed with Mr Butcher's evidence and said at page 18: "MR LOVETT: We were - we were at Kahu Road and we did have a compactor. We had to have a compactor doing the type of work we had." Later on at page 19 the transcript records: "MR LOVETT: Yeah, in Kahu Road and it's the corner of Tui Street and the other corner was - I think it's Gardner Street or 4 something like that. Well we had to dig across the road and lay the pipes and they have to be compacted at night before the traffic can go across them and it happened most of the days that week and we did go to Kaiapoi and fitted two ladders and were back just after morning smoke. Dean and I went. MR VIVIAN: Can you recall when you would have got the compactor? MR LOVETT: Well it was probably a Wednesday I would think. We may have had it - sometimes we had it for two days and took it back and we may not have needed it the next day and we'd go and pick it up again and we'd drop it back and (inaudible) MR VIVIAN: Always from City Hire. MR LOVETT: And invoiced yes well we don't necessarily fill one of those in. we'd just go and when it's busy first thing in the morning - there would be a queue of contractors there. You just go and pick out what you like and give the joker the thumbs up and he says I'll fix the paper work up for you and it's the same when you take it back. There's - there's nothing - you don't have to sign it when you take it back. You just unload it and give him the thumbs up or something and they put it back and tick you off. MR VIVIAN: So moving forward in that week to Thursday, what happened on the Thursday from your recollection? MR LOVETT: Well we were laying pipes. MR VIVIAN: Mmm. MR LOVETT: And we had a - we had a compactor on the Thursday but I think on the Thursday - it was either the Wednesday or the Thursday afternoon I went to town and picked up the two ladders and then brought them back and then the next morning I met Dean at work and we went out to Kaiapoi, fitted those. MR VIVIAN: Just - just pause there. You took the ladders to Kaiapoi so that could have been Thursday or Friday morning, you're not sure. MR LOVETT: Yeah well I'm pretty sure it was a Thursday really. It may have been Friday but it was only a matter of um a half an hour's work out at Kaiapoi. We were back just after - just after morning smoke. 5 MR VIVIAN: What happened after that? MR LOVETT" Well we just carried on doing the pipe work and before we knocked off on the Friday afternoon we had to compact - um compact the trenches up to a standard that the Council - the Council Manager was there to make sure it was done and then um Dean, Jason loaded the compactor on the trailer and Jason and I unloaded it at City Hire." The worker confirmed that the compactor was returned to Christchurch City Hire Limited at about 4 o'clock of the afternoon of 26 September 1997 and that he signed nothing on its return. In relation to the rotary hoe episode the transcript records at page 24: "MR LOVETT: Well I went down on Saturday and I got - I got up in the morning. My back didn't feel so bad so I thought well I don't want to have to wait another week so I'd better go and get the rotary hoe and I wasn't working for anybody else. I was working for myself doing my garden at home I went there and Hank - there was only him and me there. There was another bloke standing there - just standing beside - his son was standing there and I said why didn't he give us a hand. He said well he's not allowed to lift things he's been on ACC. MR VIVIAN: Mmm. MR LOVETT: So I hurt my back again then when I was lifting that on and I was determined to do ... MR VIVIAN: So which accident was worse ? Which accident caused the most damage? MR LOVETT: Oh Saturday morning. MR VIVIAN: The Saturday morning one. MR LOVETT: Yeah." While Mr Butcher stated in evidence that the worker had told him on the Monday that he had hurt his back while removing the rotary hoe on the Saturday, that evidence was disputed by the worker who told the Review Officer what he had said to Mr Butcher and it appears on page 25 of the transcript: "MR LOVETT: I told him I'd hurt my back and he said well I know how you done that lifting that bloody compactor onto the trailer wasn't it and I - I said yes and I said I had a rotary hoe on Saturday morning which didn't do it any good. Made it worse and I worked all that week until the Thursday 6 lunchtime and Dean he had to take me home and Mr Butcher did not pay me for the first fortnight. He paid me but I was at work for the first - for the first week and I was only off until the next Thursday and I was coming to work for about two or three hours and I couldn't hack it and I had to go so the doctor put me off for another week but I only had - I only had the weekend off and I come back on the Monday without a clearance and I gave Mr Butcher the um medical which run out on the 17th which was the following Thursday and on Friday he gave me a week's notice.' Mr D Lovett confirmed that he had gone with the worker to Kaiapoi to put the ladders in the manholes and that they had returned to Kahu Road about the time for morning smoke. He said that the job at Kahu Road was laying pipes across the road and said that on the Friday afternoon they always had to compact the trench down so it would last for the weekend and they would then come back on Monday to continue the work. Mr D Lovett also confirmed that he was not always required to have to sign when uplifting or returning machinery to Christchurch City Hire Limited. In his evidence Mr Pomare stated that he had been working all week at Kahu Road with the worker and his son Dean and that the only time the worker and Dean were not present was when they went to Kaiapoi on the Friday morning. He said at page 30 of the transcript: "I was there on my own and um there was no digger driver there or anything and the road had to be filled up by the Friday. Um Ken the Council guy had come round and by hand I had to wheelbarrow the um - wheelbarrow it all into the hole." He then went on to say at page 31 of the transcript: "MR POMARE: Packing up - packed up and me and Dean took the compactor on a trailer. We had all been paid or me and Dean had been paid by that stage. We went to City Hire. As me and Russell were taking it off, he hurt his back. After that I dragged it back into the um City Hire and let them know it was back. I had to sign nothing which I never signed anything the whole time I took anything back in there and Russell had hurt his back and he looked pale - well didn't look very well. It was quite obvious he'd hurt his back. MR VIVIAN: What happened after that? Do you (inaudible) MR POMARE: ... I got dropped off and after that I got laid off because there was no work so I was told." 7 Later in the transcript a comment by Mr Butcher was "only - I'd only just like to say well if - if there was a compactor used why wasn't someone charged for it." The Review Officer accepted that the evidence of the worker, as supported by Mr Pomare and Mr D Lovett, was clear and unequivocal. At the appeal hearing, leave was granted to the appellant to adduce evidence from Mr De Leur who explained the manner of bookkeeping adopted at Christchurch City Limited. He produced his day book for the period in question, together with various copies of invoices from which he explained that when an article was taken from his firm it was recorded in the day book and the subsequent invoice sent to the person who had made the hire. He acknowledged that Mr Butcher was a longstanding customer of his company and from time to time hired numerous articles of equipment. His records did not disclose that a plate compactor had been hired during the week commencing 22 September and finishing 28 September 1997 and the daybook does not include any notification of such a hire. He said that he did recall the worker hiring a rotary hoe for his own use on 28 September and that in the process of unloading the rotary hoe he injured his back. When he returned the hoe the worker had explained that he had finished the work. In answer to Mr Barnett, Mr De Leur stated that he had a staff of five who worked at hiring out equipment. He conceded that some of the invoices included in the documents he produced had not been signed and said that that could occur if the staff were busy on the day in question. He said that if they knew the people with whom they were dealing they may not necessarily require a signature but that a signature for the return of the machinery would be obtained later. After Mr Barnett had referred him to a number of invoices and the day book, Mr De Leur conceded that on occasions there may have been machinery taken out for which no record had been made. Mr James submitted that the evidence now before the Court supported the fact that there was no record of the hire of a compactor during the week in question so that there could have been no return of a compactor on Friday 26 September 1997. He submitted that it was obvious that there was a non-work related injury on 27 September 1997 and that this was the cause of the worker's problem. He submitted that the medical evidence would not be able to differentiate between the accident to the back on 26 September 1997 and another similar accident on 27 September 1997. He submitted that on the evidence of the worker there was a possibility that the injury was the result of the second accident. Mr James submitted further that the Review Officer had erred in failing to give proper weight to the documentary evidence. He submitted further that there was no direct evidence by either the worker or his son, Dean, as to who had hired the compactor or when it was hired. He also raised concern that the Review Officer had posed leading questions to the witnesses. Mr Barnett submitted that the issue is one that has to be decided on the facts and that the Court should hesitate to interfere where factual matters have been decided by the Review Officer. He submitted further that it is clear from the documentary evidence produced that a number of hire agreements had no signature on them and it was 8 significant that the worker was not required to sign the document when returning the rotary hoe on 27 September 1997. He submitted further that the documentary evidence of Mr De Leur that no plate compactor had been hired was not conclusive particularly having regard to his concession that the documents he produced may not have been a complete record while Mr Pomare clearly contradicted the evidence of both Mr Butcher and Mr de Leur. I have detailed excerpts from the transcript of the evidence because the Court is asked to make a finding that the Review Officer erred in the decision he gave. One matter which concerns me is that initially Mr Butcher did not consider that the worker was working at the Kahu Road site during the week in question but subsequently conceded that he was and he then raised doubts as to the nature of the work and the fact that a compactor would not have been required at that time. This is in distinct contradiction of the evidence of the worker and Mr Pomare. I have quoted Mr Pomare's statement from page 31 of the transcript because I consider that his recollection of the situation would have been heightened by the fact that he saw and described the attitude of the appellant when the compactor was removed from the trailer. Moreover, that recollection must have been heightened because it was the last incident which occurred while he was working for the appellant because he said that after the compactor was dropped off he was laid off because there was no work. I am also impressed with his recollection of what occurred when he was working on his own filling in the hole by wheelbarrow and had the discussion with the Council man who was concerned that no digger was available. All the workers were of the view that on a Friday the work had to be compacted so that the road could be used over the weekend. This would seem to me to be essential and a normal part of the operation. If there was any doubt as to the nature of the work being undertaken by the worker, his son and Mr Pomare on that day I would have thought that the appellant's worksheets or diaries would have recorded where they were working and the nature of the work being undertaken. No record of that nature has been produced either at the review stage or at the appeal hearing. While Mr James raised the question that the Review Officer posed leading questions to the participants in the review, I consider that is the very nature of a review hearing. It is not intended to be a Court hearing but is intended to be a situation in which the Review Officer can review all issues arising out of the decision of the respondent which the Review Officer can then either approve or change. It is no more than a review in which the rules of Court procedure do not apply so that I reject Mr James' complaint as to the nature in which the review was conducted. The evidence of both Mr Butcher and Mr de Leur is open to question. In the excerpt from p 15 of the transcript, Mr Butcher thought "we were probably doing some concrete work or pipe work or something." He gave that explanation as a reason why no compactor was there but he has not produced his daily worksheets or diaries to confirm this. This is in direct contrast to the evidence of the three employees that at the time they were laying pipes at Kahu Road and it being a Friday, the trench had to be compacted for the safety of the weekend traffic. I assume this was why the Council man was there to inspect the work. 9 As far as Mr De Leur's evidence was concerned, he conceded that at times the paper work may not have been as perfect as he suggested and an item of machinery may have been taken by a person well known to the staff without a record being made. On that basis the absence of an invoice for a compactor in that week does not necessarily demonstrate that one was not taken out and returned as the worker and Mr Pomare described. I have had the benefit of the additional evidence from Mr De Leur which was not available to the Review Officer. I agree with Mr Barnett that if the worker strained his back on both 26 and 27 September 1997 in the manner described, the Medical Assessor would not be able to distinguish between the effects of each incident. I consider that on the totality of the evidence the decision of the Review Officer was correct and should not be disturbed. The appeal is dismissed. -:. DATED at WELLINGTON this 3rd day of June 1999 A W Middleton District Court Judge dca414-98.doc (nr)