Browne v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 26 /95 AT WELLINGTON DCA No. 212/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN P.A. BROWNE APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland on: 8 December 1994 The appellant in person N.P. Lucie-Smith as counsel for the respondent Date of Decision: 9 March 1995 RESERVED DECISION OF JUDGE J. W. IMRIE I have decided to revoke the decision of the Corporation and to allow the appeal. 2. Introduction: The issue in this appeal is whether the appellant has cover for treatment for injury to one of his teeth. The appellant is a chef. On 18 April 1994 while at work he broke a tooth while tasting pork spare ribs. The question is whether that was personal injury to a tooth that was caused by the natural use of that tooth within the meaning of s. 10(2)(b). On 19 April 1994 the appellant filed a claim with the Corporation for cover under the Act. By letter dated 1 June 1994 the Corporation declined the appellant's claim on the ground that injury to teeth is excluded from cover if it was caused by the natural use of those teeth. Its letter reads (in part):- "From the information which has been provided we consider that you do not qualify for Accident Compensation Corporation cover. Cover can only apply to certain well defined categories of injury. One of those categories gives cover where personal injury is caused by an accident to the person concerned. Where there is personal injury to teeth, that injury is excluded from cover if it was caused by the natural use of those teeth. The information which we have shows that your teeth were damaged whilst eating. Because this is a natural use of your teeth your application is excluded from cover." By an application dated 13 June 1992 the appellant applied for review of that decision advising that the injury was a work related one and that it was part of the appellant's job as a chef to try, taste, chew and eat food. He also stated:- 3. "On the day the injury occurred, I was trying some pork bones marinated in Chinese barbeque sauce, to make sure the flavour and texture were right before they were offered to patrons of the bistro. My tooth broke and had to be crown covered to prevent further damage. The Executive Chef, Mark Woodley, was present when the injury occurred. As I was working and use my teeth every day as part of my job, I believe that my application should be approved ..." The Corporation then allowed the claim and advised the appellant of this by letter dated 29 June 1994. Its letter reads in part:- "We have considered your review application for the decision that was issued on Ist June 1994. Section 67 of the Accident Rehabilitation and Compensation Insurance Act 1992 allows the ACC to overturn or alter a decision where new information has been provided. Based on the information we received from you on your review application dated 13th June 1994 we find that the original decision that was issued on 1st June 1994 is incorrect. Therefore we have overturned this decision and your file has been allocated to the Employer fund to consider the dental costs. " However, the Corporation changed its mind again and by letter dated 12 July 1994 it advised Mr Browne:- "Further to our telephone conversation this letter is to confirm that the decision to accept your claim for dental injury has been revoked. 4. Section 67A(1)(b) of the Accident Rehabilitation and Compensation Insurance Act 1992 states: 67A Revision of decisions - The Corporation may revise any decision made by the Corporation if it appears to the Corporation that the decision has been made in error, whether by mistake or by false or misleading information having been supplied or by reason of fresh evidence or for any other reason; and the Corporation may revoke the decision and substitute a new decision. With regard to your dental claim itself Section 10(2)(b) of the Act is very specific. It reads as follows: 10. General exclusions from cover - For the avoidance of doubt it is hereby declared that personal injury to teeth that is caused by the natural use of those teeth is not covered by this Act. Accordingly your claim has been declined. As you have already lodged an application for review your file will be referred to the ACC Review Section and they will contact you direct in due course to arrange a review hearing." In his decision the Review Officer set out the background to the review and s. 10(2) and confirmed the Corporation's decision stating:- "Whilst I appreciate Mr Browne's perspective, and indeed the frustration with having the decision made, then revoked and again re-revoked, the plain reading of Section 10(2)(b) is clear." 5. Appeal Hearing: At the hearing of the appeal Mr Browne wanted to produce to the Court samples of the food he received for testing in the course of his employment. (He had previously made this request in writing to the Registrar and the Corporation had been advised of the request and opposed it.) He said that people bring many samples in for him to test, and his view was that if in the course of sampling his teeth were damaged, that was an injury in the course of his employment, not a natural use of his teeth. I advised him that it might be appropriate to hear evidence on from him. Mr Lucie-Smith presented written submissions which he read and copies of the two cases referred to in those submissions. In his written submissions Mr Lucie-Smith set out the background to the appeal. He referred to s. 10(2) of the Act and to s.66 and 76(3) of the 1982 Act. He referred to the decision in Nguyen (30/84) and Jurisich (22/86). He submitted:- "Clearly using one's teeth for some purpose other than tasting and chewing food, while clearly a use of the teeth, was not considered by Middleton DCJ in Jurisich to be a normal use. It is submitted that the word 'normal' in this context must mean the same as 'natural'. Here the appellant was using his teeth in the course of his employment as a chef to taste food. He must also have bitten into food (pork spare ribs) in order to carry out that function. Whether it was part of his employment or not is irrelevant, it is submitted that what occurred was in the course of natural use of the teeth and therefore the appellant comes within the exclusion provision of s. 10(2)(b) of the Act." 6. I advised Mr Lucie-Smith that I was considering getting Mr Browne to give evidence along the lines he had indicated. Mr Lucie-Smith objected to Mr Browne giving evidence. He said that we were not dealing with personal injury caused by gradual process and there was no evidence that there was any defect in the tooth. The Court was concerned with a specific event, and it was irrelevant that Mr Browne might taste samples many times. He said it was not possible to distinguish the occasions when Mr Browne sample-tasted food at work and when he ate at home. He also said that Mr Browne was not an expert on the state of his teeth. For the reasons I gave at the time I decided Mr Browne should be allowed to give evidence and he was. Mr Browne began to give evidence. I had from him his name, address and occupation and said "We are concerned about your claim for ..." Mr Lucie-Smith interrupted saying he had a fundamental objection to what was going on. He explained that his objection was that the appellant was prepared to present his own case and Mr Lucie- Smith's concern would be that I was putting myself in a difficult position. I rejected that submission and Mr Browne gave his evidence. Mr Lucie-Smith cross-examined Mr Browne without prejudice to any rights of appeal the Corporation might wish to exercise from the way the matter had been dealt with to that point. Summary of Mr Browne's Evidence: Mr Browne said in evidence that when many suppliers come to his place of employment to have new products tasted and tried to see if they would be acceptable in the business, for example cheese, sausages, salami 7. and ham. Some products have to be deep fried and tasted to evaluate them and the only way to do that is to use his teeth and mouth. That is part of his job. If he does not do that there is no way he can evaluate the products. The head chef is always saying "Have you tasted that? Have you tried that? How do you know that is the right sort of flavour? Have you tasted that for tenderness? How do you know if it is cooked long enough?" It could be a pork bone, a spare rib, or a bit of chicken with a bone in it. In the month before the hearing of the appeal he would have had at least 40 sample items. During the course of a day there would be at least 30 times that he would have to taste or try something that he was making including salads, sauces and stews. He does not usually eat at work. He eats at home. His wife cooks and he has a family and he prefers to eat at home. A good 90 percent of the use of his teeth at work would be for sampling. Sometimes he and the people he works with may sit down in a group and have a nibble, but not very often. In cross-examination he agreed that he cooked the spare rib on which he broke his tooth, and that he knew there were bones in the spare ribs. He took the spare ribs out of the oven to make sure they were cooked properly and tender. He intended to bite the spare rib. Consideration and Decision: Section 10(2) of the Act provides (in part):- "For the avoidance of doubt it is hereby declared that - ... 8. (b) Personal injury to teeth that is caused by the natural use of those teeth. ... is not covered by this Act." The following meanings are taken from the Shorter Oxford Dictionary. Suitable dictionary meanings of the word "natural" are "taking place or operating in accordance with the ordinary course of nature" and "consonant with the nature or character of the thing". A suitable meaning of the word "nature" is "the essential qualities of a thing" . A suitable meaning of the word "use" is "to employ for a purpose". The dictionary describes "teeth" as the hard processes in the mouth attached to the jaw serving primarily for biting solid food. On that basis the phrase "the natural use of ... teeth" means "employing teeth for the purpose of biting solid food". That would include what Mr Browne did when he injured his teeth. However, I consider that the natural use of teeth these days also includes the essential quality of biting solid food for the purpose of eating it or at least sampling it for oneself. That would have been what the Legislature had in mind when it passed s. 10(2)(b). It appears to have used the word "natural" so that injuries to teeth from unnatural uses such as holding a rope with one's teeth (see e.g. Jurisich Appeal Authority Decision 23/86) would not be excluded from the cover of the Act. It appears that the Legislature would not have intended to exclude 9. from cover under the Act chefs sampling food in the course of their employment. I do not consider that the biting of food by a chef as part of his employment as many as 30 times a day for the purpose of sampling the food for others comes within the phrase "the natural use of ... teeth". (For the purposes of this decision I do not have to decide whether for example the use by a parent of his or her teeth to sample food for a child, to see if it was not too hot, would be a natural use of teeth.) The Courts have considered the phrase "the natural use of land" when dealing with liability for the consequences of escape of fire. I understand that natural use of land is use which is not special or exceptional (see e.g. N.Z. Forest Products Lid and Another v O'Sullivan [1974] 2 NZLR 80, 87). The analogy should not be stretched but Mr Browne's use of his teeth when one broke was special or exceptional and on that basis not natural. In this case I do not consider that the injury to Mr Browne's tooth in the course of his employment as a chef was caused by the natural use of his teeth when he had to use his teeth to test food at least 30 times a day, and when he distinguished between his use of teeth for that purpose and for eating food for himself. The result is that the Corporation has not established that cover is excluded by s. 10(2)(b) and Mr Browne is entitled to cover and his appeal succeeds. (J.W. Imrie DCJ)