McCormick Transport Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 173 /97 HELD AT CHRISTCHURCH IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN MCCORMICK TRANSPORT LIMITED Appellant (Appeal No. DCA 42/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 27th day of June 1997 APPEARANCES J M Appleyard for appellant C Taylor for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a question whether an accident arose out of and in the course of employment. It arises out of a decision by the Corporation on 21 September 1995 classifying an injury as a work injury for the purposes of application of the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993. The difficulty in this case is the lack of any direct evidence of how that accident occurred. The claimant, Mr Burrows was employed as a despatch clerk by the appellant. He had been employed by the company for about 20 years, was in receipt of a salary, and worked reasonably long hours. His duties were centred around the despatch office where he needed to be most of the ime while on duty in order to attend to the radio telephone. He was found injured at about 6.30 am on 18 February - 2- 1992 in the appellant's yard near a truck and unconscious. There was some considerable evidence about the nature of his employment tasks and the need for him to be in the yard. The contemporaneous medical evidence was recorded by Dr Janusz Bonkowski, neurosurgeon engaged by Canterbury Health. He reported that Mr Burrows had fallen from a truck, but that was necessarily an assumption because there was nothing about the injuries that excluded another possible cause such as an assault. In a letter on 9 February 1993 Dr Bonkowski said that Mr Burrows had probably fallen or otherwise bumped his head whilst trying to get up or off a tractor. When taken to hospital he had deteriorated to a comatose state and was found to have a large extradural haemorrhage over the left side of the brain. He assessed a 70% disability under s 78 of the Accident Compensation Act 1982 Mr Mccormick gave evidence at the review. He said that Mr Burrows usually started work at about 7.00 am. The accident occurred on a Saturday and Mr Mccormick said that it would be most unusual for Mr Burrows to be there before 7.00 am on a Saturday, but that on some days he might have started work by then. He thought that there was no-one rostered to start before 7.00 am but said that he could be wrong. Mr Burrows was considered to be a good worker and the employer could not suggest any reason other than his work tasks that Mr Burrows may have been on the premises for at the time in question. Mr Mccormick was sure however that Mr Burrows would not have been employed loading or unloading a truck because that was not part of his duties and would not have been required of him. Put simply, it was not his job. Mr Mccormick conceded that Mr Burrows may have been carrying out an inspection, although there was no evidence of any kind of inspection having been required on the day. He described Mr Burrows' job as involving answering the phone and co- ordinating jobs or passing them over the radio telephone or to men over the counter. That work was all done in the office, but occasionally he would have to go out in the yard to speak to a driver. Mr Burrows looked after general freight and others looked after stock and bulk grain. The loading and unloading was done by the drivers themselves but sometimes they had assistance from someone on the staff. Anyone might be called for assistance from time to time. Mr Mccormick considered that Mr Burrows could not have been unloading, because it was just not done. There were forklifts and equipment and he would not have just unloaded a truck by himself. He said the truck was not a general freight truck with a canopy but one that was used for carting hay. He believed that the truck had not been in the lock-up but had been parked outside overnight. Mr Mccormick expressed some uncertainties in his evidence. He said that he did not know himself what was going on in the yard on that particular morning and he had heard different accounts. He said that he could not understand how the accident happened because it was not Mr Burrows' job to be near the trucks The claimant's wife gave evidence at the review hearing. Mrs Burrows agreed that her husband's job was mainly in the office; but she said that she knew, from general conversation, that he used to go over to the yard, checking the lock-up and other things from time to time. He had told her that they really needed a storeman but one wasn't available. She said that on the day of the accident he said that he was going to - 3 unload a freight truck because the drivers were all out doing hay and containers and they wanted the freight truck unloaded and ready to come back to Christchurch on the Monday morning. She said that someone always worked there on a Saturday and it was not unusual for Mr Burrows to work on a Saturday. She recalled that he went at about 6.00 am and she thought that he would have started at about 6.30 am. She thought that he wanted to get it all loaded and then be back in the office by 7.00 or 8.00 before anybody started ringing. The distance from home to work was only about five minutes. Mrs Burrows said that she knew her husband was going to work to unlock the lock-up and get the truck out. She thought that the fork-lift had been beside the truck but she had that only through rumour and she had not been there when he was found. She said that he told her he wanted to get the work done so that the drivers could all finish on Saturday afternoon because they had been very busy. The reason for the vagueness of the evidence was partly because the review was not heard until nearly four years after the accident, and it seems that there was no police enquiry at the time. There is no evidence of an OSH investigation either. Mr Burrows suffered significant brain damage and had no recollection of the incident. He did not give evidence at the review. There is a puzzling lack of direct evidence nevertheless. It may be that the appellant could have been expected to provide more helpful information, but witnesses were not challenged at the review hearing to explain why more precise information was not available. The question on appeal falls be decided according to the circumstantial evidence and the inference that should be drawn as to whether the injury arose out of and in the course of employment. Section 3 of the Act contains the relevant definitions. The expression "arising out of employment", relates to an injury that would not have occurred but for the person being in that person's place of employment. That is the probable position in the present case, leaving aside the possibility that the appellant suffered a blackout which he might have suffered anywhere. The blackout theory is not established on the evidence. "Arising in the course of employment", in relation to a personal injury, means an injury that occurs in certain circumstances, the first of which is while any employment task is being performed at a place of employment. That is the relevant part of the definition for the purpose of this case. The others do not seem to have any application, except perhaps for the exclusion that applies to an injury that occurs while a person is travelling to or from the person's place of employment, because it relates to the possibility that the claimant was walking into the yard and not engaged on an employment task. It would have been helpful to have a description of the yard and the positions of Mr Burrows and other objects, particularly the vehicles, along with locations of entrances and the despatch office. In the absence of that kind of evidence, the range of possibilities is broader, with the result that it is more difficult to prove a proposition by circumstantial evidence. The onus of proof is important. In this case, it is the Corporation which seeks to establish a fact that will result in premium loading against the appellant, therefore the onus lies on the Corporation. The Review Officer considered that the onus lay on the employer, but the respondent does not support that view. There may be some room for the proposition that the fact of the accident - 4 - having apparently happened on the employer's premises raises an evidential onus on the appellant to show that he was not engaged in a work task. Apart from that, this is a case where the decision depends largely on weighing inferences to be derived from circumstances. The Review Officer did not make any findings of credibility. The appeal hearing is a hearing de novo on the same material that was before the Review Officer. A suggestion was made in documents and at the review hearing that the claimant had previously suffered blackouts, and that the accident was possibly caused through a blackout and a fall. Mr Burrows' general practitioner said he had absolutely no record of any neurological condition or blackouts. That, therefore, appears to be a remote possibility not supported by evidence. The possibilities to be considered are almost unlimited in the absence of any really helpful evidence. Those which are most likely might be reduced to three broad possibilities. First, the claimant might have been walking into the premises before engaging on any work task, and may have been assaulted. Secondly, he may have commenced his employment tasks by perhaps going into the despatch office and then coming into the yard where, possibly, he was assaulted. In that case he would have been likely to have started engaging in employment tasks in the broad sense of going about the premises in the process of starting work. Thirdly, whether he had been in his despatch officer or not, he may have climbed on a truck and fallen. If he did that, it does not seem likely that he would have climbed up for some purpose of his own, and it would be probable that he was checking something or engaged on some employment related activity. There are other possibilities of course. In particular, he may have seen something unusual and surprised an intruder or he may have been hit by a vehicle. Most of the possibilities that can be envisaged might be connected with an employment task, but is that enough to establish the issue against the appellant? Looked at from another perspective, the question is whether he had started work or not. There is a possibility that he had not even entered the yard when he was struck and was later carried there. Much depends on the time of the accident and that is not accurately known. Mrs Burrows said that he left at 6.00 am but there seems to be no evidence that he was injured closer to 6.05 am or 6.30 am. Assistance may be gained from two authorities which have recently been cited to the Court in another case. In Luxton v Vines [1952] 85 CLR 352, 358 it was said that: "Where direct evidence is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and a definite inference; they must do more than give rise to conflicting interests of probability so that the choice between them is a mere matter of conjecture. Dickson J, as he then was, in Briginshaw v Briginshaw (1938) CLR 60 336, 361 said: "The truth is that when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or its existence before it can be found. It cannot be found as a result of a mere technical comparison of probabilities, independently of any belief in its reality." - 5- In this case, if further investigation had unearthed some reliable evidence of the state of affairs in the appellant's yard on the morning when Mr Burrows was found unconscious, then the Court might have been in a position to draw reasonably reliable inferences. As the evidence stands, the possible inferences can only be ranged on each side to construct a theory of probability. In my view, the conclusions still remain in the realm of conjecture. Therefore, it is not possible to establish by inference that the injury arose out of and in the course or employment or it did not. The question must remain unresolved and, the onus being on the respondent, the appeal is allowed. The appellant will have costs of $750. DATED at WELLINGTON this 1/TH day of AUGUST 1997 D A Ongley District Court Judge