O'Regan v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. $ 199 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 ROBYN LYNETTE O'REGAN DCA 398/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of December 1998 APPEARANCES: Ms P A Macky, counsel for appellant Miss H A Preston, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the back injury which the appellant suffered was personal injury by accident within the meaning of "accident" under the Act. Background The appellant, aged 48, is a dairy farmer in partnership with her husband. 2 On 6 March 1997, in the words of the appellant, "I twisted my back while getting out of the way of a cow's hoof." In evidence at the review hearing it was stated that she twisted her back when dodging a kicking cow's hoof in the cow shed. She twisted her body to avoid the flying hoof. She stated that it was in that twisting movement that she felt extreme pain. Initially the claim for cover was accepted and the appellant underwent certain treatment for her injury and further investigation would indicate that she was in need of an operation on her back. In or about July 1998 the respondent must have taken a closer look at the circumstances of the injury and a decision was made on 6 July 1998 that the circumstances of the appellant's injury did not constitute an accident and therefore cover was declined and the earlier decision to grant cover was reversed under section 67A of the Act. The appellant sought a review of this decision and one of the submissions made in support of that review was from her GP, Dr Faulkner, and his statement of the circumstances of the injury help clarify exactly what happened. He stated: "This lady sustained a twisting, wrenching force when partly flexed at the lumbar spine. She made a sudden 'unguarded' movement to avoid a cow that was kicking. She felt a sudden pain in her lower back which became stiff over the next few days." He went on to state: "The fact that there was no impact is irrelevant and if one understands the mode of injury this is more likely to follow a no impact twisting force with the spine in forward flexion. This causes tears of the Annulus Fibrosis then bulging and herniation of disc material." At the review hearing the appellant posed the obvious question, should she have stayed where she was and allowed the cow to kick her. The review officer ruled that the definition of "accident" in the Act required a specific event or series of events that involved the application of force or resistance external to the body. She ruled that on the facts of this accident it did not come within that definition and therefore the Corporation was correct in its decision to decline cover. Miss Macky, counsel for the appellant submitted that the sudden movement of the cow's hoof in a kicking motion could be considered as being as an application of external force. She further submitted that the movement of the appellant's body in conjunction with this was an application of force being applied by gravity. Counsel referred to the decision of the High Court in Wallbutton v Accident Compensation Commission (1983) NZACR 629 which adopted and followed an earlier decision of the House of Lords in Jones v Secretary of State for Social Services [1972] AC 944. In the context of those decisions counsel submitted that it would be ludicrous to hold that the appellant had to suffer the direct consequences of the cow's kick to obtain cover. She submitted that there would always be circumstances in which personal injury is caused although there appears to be no external injury but clearly external force was required to create the injury suffered. Counsel further submitted that the decision of this Court in Stephens (196/98) could be distinguished as this appellant's action was an involuntary action to avoid being struck by the cow's hoof whereas in Stephens it was a voluntary action in turning the body to speak to someone. Miss Preston, counsel for the respondent, submitted that there was no external force or resistance involved. The cow's hoof did not come into contact with the appellant and nor was any other external force applied. Counsel submitted that the facts of this case were analogous to that in Stephens and that the decision of this Court in that case should be followed. Decision Under section 8 of the Act cover for entitlements is granted in respect of personal injury which is caused by an accident to the person concerned. In section 3 of the Act "accident" means: "A specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process: and the fact that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events." The circumstances giving rise to the appellant's injury were that she twisted her body in a sudden involuntary movement in order to evade the flying hoof of a cow. There is no dispute that she was not touched by the cow's hoof in this manoeuvre. It is equally clear from the advice of Dr Faulkner that the injury she suffered was that of a twisting force with the spine in forward flexion causing a tear of the Annulus Fibrosis and then a bulging and herniation of disc material. From this description I infer that there was some form of impact by a resistance or force internal of her spine, one part impacting on another in the course of the twisting movement that she carried out. In those circumstances it cannot be said that there was any application of a force or resistance external to the body, the whole of the force or resistance was internal. In the decision of Stephens which was a case where the claimant was climbing some stairs and turned suddenly to respond to a call from below and the twisting motion he carried out caused disc herniation, I stated: "The definition of 'accident' in the Act requires that there be the application of a force or resistance external to the human body. It matters not that that force or resistance is natural or artificial. Being struck by a bolt of lightening would be considered no differently than electrocution from contact with a live wire. Furthermore that external force or resistance can be applied by the injured person himself or through some external agency, animate or inanimate. The common thread that must exist is that the source of the force must come from without and not within the human body of the injured person." In this case, although it may seem harsh, I find that the situation of the cow's flying hoof to be no different from the call of the grandchild to the grandfather in Stephens. It was the reason for the twisting movement but it did not of itself cause any external force. 5 The source of the force in this present case has come solely from the interaction of different body parts in the appellant's spine "protesting" at the sudden movement which her body made. I do not consider that it assists in consideration of this case that the appellant would indeed have cover under the Act if the cow's hoof had struck her and she had suffered an injury from that source. I have considered the Wallbutton v ACC case cited by counsel for the appellant but find that it is not applicable to considerations of the definition of accident under the 1992 Act. That case concerned the meaning of the word "accident" within the definition of personal injury by accident as set out in the 1982 Accident Compensation Act. Under that Act the word "accident" was not separately defined. In that context His Honour considered that the word "accident" under that Act embraced an event which was not intended by the person who suffered the misfortune, or an event which although intended by the person who caused it to occur, resulted in a misfortune to him which he did not intend. The Court took this meaning from the English decision of Jones v Secretary of State for Social Services which stated that accident was an unintended misfortune. Those concepts of accident are far removed from the defined expression of the meaning of accident contained in the 1992 Act. Were this case to be considered under the 1982 Act I would agree that the appellant would likely have cover. However under the considerably "tightened" definition in the 1992 Act, the circumstances whereby the appellant suffered her injury do not constitute an accident. For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON this 2/ >+ day of January 1999 M J Beattie DISTRICT COURT JUDGE O'Regan.doc