Rotorua Forest Haulage Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 106 /98 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 ROTORUA FOREST HAULAGE LTD DCA 394/97 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 May 1998 APPEARANCES: Miss A C Wills for appellant Ms L Rice for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the fatal injury suffered by Paul Dyer, an employee of the appellant, was a work injury in terms of section 6 of the Act. 2 Relevant Facts Selwyn Paul Dyer was employed by the appellant as a truck driver. Mr Dyer was allergic to bee stings and this fact was known by his employer. He was provided with an airconditioned truck, a radio telephone and mobile phone to enable him to contact someone in the event of an emergency. He carried an emergency anti- toxin kit with him. On the 13th of March 1996 Mr Dyer was found dead in the cab of his employer's truck in Puni Road, Pukekohe. His anti-toxin kit was open and there was a syringe on the seat beside him. The coroner's verdict was "death resulting from an anaphylactic reaction (probable bee sting)." There is no dispute that at the time of his death Mr Dyer was driving his employer's truck in the course of his employment. By letter dated 24th September 1996 the Corporation advised the deceased's employer, the appellant, that the deceased's death was classified as a work injury claim and that the claim would be attributed to it for the purposes of experience rating for the year ended 31st March 1996. The employer sought a review of that decision and in his decision dated 20th October 1997 the Review Officer confirmed the Corporation's decision stating: "While I can understand from the employer's point of view that to accept Mr Dyer's claim as being work related in circumstances over which unreasonably they had no or little control, to be considered unfair, it is not for this jurisdiction to exercise any discretion or to interpret the legislation contrary to such District Court decisions as Harwood. Mr Dyer was driving his truck as an employment 3 task for Rotorua Forest Haulage Lid and while his injury could equally have happened elsewhere, in this instance it occurred while engaged in an employment task. Were it not for Mr Dyer's employment task at that time it seems reasonable to conclude that he would not have been stung by the bee. Accordingly I believe that the facts of the case satisfied their requirement of the injury having arisen 'out of employment'." Relevant Statutory Provisions Section 6(1) of the ARCI Act provides: "(1) For the purposes of this Act, 'work injury', in relation to any person, means personal injury arising out of and the course of employment of that person; and includes a cardio-vascular or cerebro-vascular episode where--- (a) That episode is caused by physical effort or physical strain arising out of and in the course of employment; and (b) That physical effort or physical strain is abnormal in application or excessive in intensity for the person suffering it." "Arising in the course of employment" is defined in section 3 of the ARCI Act as: "... in relation to a personal injury, means an injury that occurs--- ( a ) While any employment task is being performed at a place of employment; or (6) During any temporary interruption of work for a meal or rest or refreshment, if the accident happens at the person's place of employment; or (c) While the person is travelling between the person's places of employment by the most direct practicable route; or 4 (d) While the person is attending a course of education or training for the purposes of the person's current employment, and the person receives earnings from that employment in respect of that attendance; and any such place shall be deemed to be a place of employment of that person; or (e) While the person is travelling between a place of employment and another place by the most direct practicable route for the purposes of necessary health care treatment or service in respect of a work injury, being health care treatment or service of a kind for which the Corporation is required or permitted to make payments under this Act, irrespective of whether or not it makes any payment in the particular case--- but does not include an injury that occurs--- While a person is travelling to or from the person's place of employment (other than between places of employment) unless paragraph (e) of this definition applies or the person is an employee and the transport is provided by the employer and is driven by the employer or, at the direction of the employer, by an employee of the employer or of a related or associated employer for the purpose of transporting employees; or ( 8) While the person is in accommodation provided by or at the expense of the employer, or by or at the expense of the injured person where the injured person is not an employee, and in either case is not performing employment duties; or ( h ) While the person is participating, other than at the person's place of employment, in a recreational activity provided by or at the expense of the employer or sponsored by the employer, or by or at the expense of the injured person where that person is not an employee." "Arising out of employment" is defined in section 3 of the ARCI Act as: "... in relation to a personal injury, means an injury that would not have occurred but for the person being in that person's place of employment, and it shall not be relevant that--- 5 ( a) The person may be acting in contravention of any Act or regulations applicable to the employment, or in contravention of any instructions, or in the absence of instructions; or (b ) The person may be working under an illegal contract; or (c) The person may have indulged in or been the victim of misconduct, skylarking, negligence, or been the victim of any force of nature:" "Place of employment" is defined in section 3 of the ARCI Act as: "... any premises or place occupied for the purposes of employment and any premises or place to which an employee has access by virtue of the employment." It is accepted by counsel for the appellant that Mr Dyer's death occurred "in the course of employment," that is that death occurred whilst the deceased was carrying out an employment task at a place of employment. The matter at issue between the appellant and the respondent is that the appellant contends that death did not occur "arising out of employment". Appellant's Submissions Counsel submits that the second component of the definition of work injury - "arising out of employment" is not met by the facts of this case. Counsel submits that: i The words arising out of and the inclusion of the but for test are causative phrases which require some degree of causation to be shown which means that more is required than the person merely being in a place of employment. She submits that were it to be otherwise the phrase arising out of employment and the meaning thereof would be redundant. 6 ii The decisions of Billings and Harwood can be distinguished in that in those decisions the physical environment of the work place was intrinsically linked to the action which resulted in the injury whereas Mr Dyer's death was wholly extraneous to the work place and bore no relationship to the working environment which can be controlled by the employer. There needs to be a causative relationship between the place of employment and the injury to meet the test of arising out of employment. ifi. The issue of whether the injury would have occurred but for the person being in the place of employment must be confined to the actual place of employment and not the wider surrounds. In other words it is the actual vehicle itself which is a place of employment and not the particular road in a particular place and time in which that vehicle was travelling. The injury suffered by Mr Dyer is one that is wholly extraneous to the employment environment. On the contrary a force wholly outside of that associated with the work task and work environment of the vehicle attacked Mr Dyer who died as a result of that attack. iv. The purpose of the Act is to define injuries as work injuries or otherwise for the purpose of establishing the basis of their funding. There is a clear carrot and stick approach to this legislation which is aimed at ensuring employers provide safer work places and reduce work injuries and thereby reduce their premiums. V . If Parliament had intended the experience rating and financial consequences to flow from all injuries occurring in the work place, there would be no need for the arising out of employment formula and accidents could be considered solely on the arising in the course of employment test. 7 vi. When the Act is looked at as a whole, including the consequences intended by the Act as a result of a work injury classification, the definition of work injury must be interpreted as being a distinct two test formula with causative phrases in the second part of the formula. That second part of the formula requires some causative relationship between the work place and the injury and cannot cover wholly extraneous incidents such as the bee stinging Mr Dyer. vii. There was nothing in the working environment which made Mr Dyer more susceptible to being stung by a bee than any other activity that he may carry out in his life. It is not possible to say that the injury would not have occurred had Mr Dyer not been in his truck, the existence of the truck being wholly irrelevant to the existence of the bee. Therefore it cannot be said that the bee sting would not have occurred but for being in the place of work. Respondent's Submissions Counsel submitted: i. That the decisions of Billings and Harwood were correctly decided and that this Court should apply principles enunciated in those decisions. ii. If the ordinary meaning of place of employment is accepted it must include the environment through which an employee may pass by virtue of his employment and it was in that environment that he encountered the bee. To place the appellant's submitted narrow interpretation of place of employment would be to render paragraphs (c) and (e) of the definition of arising in the course of employment as ineffectual. It was submitted that if Parliament had intended that such a narrow interpretation of arising out of 8 employment be adopted it would not have defined the events in paragraphs (c) and (e) as events which arise in the course of employment. ifi. The precise injury that Mr Dyer suffered from would not have occurred if he had not been carrying out his employment task in his truck in Pukekohe. iv . Because it is reasonable to infer that the bee entered the confined space of the cab of the truck rather than Mr Dyer encountering it outside it is reasonable to conclude that the bee sting which resulted would not have occurred if he had not been carrying out his employment task in his truck at the time. V. Although it may seem unfair to experience rate an employer in the circumstances of this tragedy, it is no less unfair to experience rate an employer where an employee is injured while skylarking or contravening instructions, yet there is specific direction to disregard those factors for the purposes of determining work injury. Previous Court Decisions i. Harwood v ARCIC Decision No. 64/95. In this case the appellant was an environment health officer and as part of her employment she was required to be on standby from time to time at weekends. She was provided with a mobile phone so that she could answer calls. She was paid overtime rates, the calculation of payment commencing from the time the call was taken. She was at Glenfield with her husband when a call came. The call required her to attend at the scene of the complainant and she thereupon made her way by car from Glenfield to Remuera for that purpose. While so travelling to the complainant's address her car was involved in a collision and she was injured. The issue was whether the 9 appellant's injury was work injury. Her Honour Judge Lovell-Smith found in those circumstances the motor vehicle in which she was travelling was a place of employment. Her Honour went on to hold that the injury would not have occurred but for the appellant being in her place of employment; that the injury was one arising out of employment. The sole reason that she and her husband detoured was to investigate the complaint and were it not for that call out they would not have been on that particular part of the motorway where the accident occurred. ii. Billings v ARCIC Decision No. 86/96. The injured person was employed as a secretary in a law practice. She twisted her left knee when turning round to answer a telephone at work. It was contended by the employer that the injury did not arise out of employment. The employer contended that there must be a connection with the employment which is so strong that one must be able to say that it would not have occurred but for the person being in that place of employment, thus excluding an injury which could just as easily have happened in another place. It was contended that there was nothing particularly relevant about the place of employment which contributed to the twisting of the knee, it could have happened anywhere at any time. His Honour Judge Ongley stated: "In my view the interpretation suggested by the appellant is too narrow. In almost all cases injuries arising in the course of employment will also arise out of employment. I do not think that the need to satisfy both requirements is an indication of a statutory intention that one of the requirements will always involve separate and distinct considerations. If the appellant's argument is correct the consequences would be far reaching. The essential fact of this case is that the employee appears to have suffered a twisting injury which did not involve force through a separate agency. The fact that she was reaching for a telephone is not 10 important, she may have been reaching for anything in the course of her employment. The logical extension of the appellant's argument would exclude from the classification of work injury all accidents of that kind. For example a worker tending to machinery who suffered a twisting, lifting or bending injury could be said to have suffered injury in a manner that could have occurred anywhere. If the appellant is right, such an injury would not be one that would not have occurred but for the person being in that person's place of employment and the accident would not be a work injury. Difficulty would arise even when an implement or other article imposes part of the force involved in the accident. For example a carpenter who injured his hand at work with a skilsaw could be said not to have suffered a work injury because the same kind of injury could have occurred if he used a skilsaw at home. Similarly if a cleaner suffered an injury while lifting a bucket of water. The need for the injury to have arisen out of the employment is no doubt imposed in order to distinguish injuries which occur during the period of employment but while the injured person is engaged on some pursuit of his or her own. The exceptions (a) and (c) in the definition of the phrase 'arising out of employment' concern breaches of rules and skylarking. They encompass circumstances where the person acts improperly while engaged in an employment related activity of the kind that is encompassed in the definition of the phrase 'arising in the course of employment'. Those activities are distinguishable from the concept of a person doing something which could not be viewed as part of the employment function at all. An example of that might be a person who is injured while working at a private hobby during a lunch hour on work premises. An illustration is to be found in Sanford South Island Lid 30/94 where an employee suffered a neck injury while putting on his motorcycle helmet to go home. The provision requires a fair large and liberal construction. It is broadly expressed and does not naturally accommodate the interpretation urged for the appellant. The particular injury in this case would not have occurred but for the person being in her place of employment. An identical injury could have occurred 11 elsewhere in similar circumstances, but that is not the test posed in s.3 of the Act. The test is whether the injury would not have occurred elsewhere, not whether the injury could not have occurred elsewhere or whether a similar injury would not have occurred elsewhere. This kind of injury could have occurred anywhere at any time, but the particular injury would not have occurred unless the physical circumstances of the work accident had happened." ifi. Robertson v ARCIC Decision No. 30/98. The claimant suffered a back injury when he twisted to lift a work bag from the back seat of his employer's car when he had arrived at his place of employment. His Honour Judge Middleton stated: "Whether the fact that the appellant was still sitting in the car when he endeavoured to uplift the bag can be construed as travelling to work or not is a moot question, but he was certainly in the vehicle with the permission of the employer and was parked at his work place so that the incident occurred while he was at his place of employment. It was necessary for him to take the bag into the office in order to supplement its contents and I accordingly consider that the injury occurred at his place of employment and arose out of the employment in that it would not have occurred had he not been at that place at that time." Decision As has been noted there is no dispute that at the time Mr Dyer received the fatal bee sting it was an occasion arising in the course of his employment. He was carrying out his principal employment task of driving his employer's truck. Similarly there is no dispute that the employer's truck was a place of employment within the meaning of that word as defined in section 3. 12 As did his Honour Judge Ongley in Billings, I reject counsel for the appellant's submission that the interpretation of "arising out of employment" imports a causative element particular to the work place, that there must be some additional factor which links the injury to the place of employment. In the context of this case the appellant is contending that the employee could have been stung by a bee anywhere at any time and that it had nothing to do with the work place. This argument I find is correctly dispelled by the reasoning of Judge Ongley in the passage of the Billings decision which I have referred to above. I find that the words of the definition hold the key, that is the injury would not have occurred but for the person being in that person's place of employment. I agree with the reasoning of his Honour Judge Ongley in Billings that the test is whether the injury would not have occurred elsewhere, not whether the injury could not have occurred elsewhere or whether a similar injury would not have occurred elsewhere. The kind of injury could have occurred anywhere at any time but the particular injury would not have occurred unless the physical circumstances of the work accident had happened. Mr Dyer would not have suffered the bee sting if he had not been in his place of employment i.e. his truck. I find that that situation is no different than if he had been stung while seated in an office or some other place at his employer's depot, yet I doubt if that situation would be questioned. On this particular occasion it was the fact of him being in his work place, where at the point of time of the sting, the bee obviously was as well and which caused the injury. If he had not been at his work place that particular bee would not have been able to sting him. Other bees may have been able to sting him at any other place and at any other time but that particular bee could only sting him because it was at his work place and if he had not been at his work place that particular bee would not have been able to sting him. 13 I accept that the consequence of this interpretation of "arising out of employment" means that in almost every case where injury has been established as having arisen in the course of employment it will also follow that it arose out of employment. However the distinction is there and the two tests have to be satisfied because there are circumstances where the fact of the person being at the place of employment but that the injury could not be said to have occurred only because of that fact. I agree with the example quoted by his Honour Judge Ongley in Billings of a person who injures himself while working at a private hobby during a work break on work premises. I do not agree with counsel for the appellant's submission that the experience rating provisions and financial consequences for the employer of a work injury require the meeting of the two-fold causative test set out in section 3 and that if Parliament intended those consequences to flow from all injuries occurring in the work place there would be no need for the "arising out of employment" formula. That formula includes injuries that have occurred as a consequence of misconduct, skylarking, negligence or acting contrary to instructions, regulations or statutory provisions. These considerations, I find, clearly dispel the notion that there must be some element of employer fault or a causative element in the work place. In the circumstances of this case there could certainly not be said to be any employer fault, or indeed that the employer had any power or control over what occurred. However this is not a component that is required. I observe that another matter not to be excluded from being within the definition is where the employee has been the victim of "any force of nature". Nothing could be clearer than that situation is outside anyone's control, yet in that circumstance an employee standing in the yard of the depot who is struck by a bolt of lightning would be within the definition and the reason is because the bolt of lightning happened to strike him at the place of employment rather than at some other 14 locality. This I find is the rationale of the definition of "arising out of employment" For the foregoing reasons I find that the circumstances of Mr Dyer's death were as a consequence of a work injury and the decision of the Corporation to hold it so was correct. This appeal is dismissed. DATED at WELLINGTON this 19th day of May 1998 M J Beattie District Court Judge Rotofor.doc KD