Bree v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 115 /96 HELD AT HAMILTON 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 ROYAN ROBERT BREE Appellant (Appeal No. DCA 191/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of August 1996 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE D A ONGLEY This case involved a myocardial infarction with cardiac arrest following stress caused to the appellant when he confronted a burglar on his premises. There was no physical injury. At the conclusion of the appeal I informed Mr Bree that he could not succeed in his claim for cover. The appellant suffered severe stress when he confronted the offender following a burglary of the appellant's shop in November 1987. He operated a wine and spirits retail shop. A burglary was reported in the early hours of the morning. He attended at the same time as the police who looked around the shop and could not find an offender. They decided the offender had decamped and, after cleaning up and securing the premises, police and the appellant both left. On the way home the appellant decided that he would go back and sleep in the shop because it was not properly secured. When - 2- he was back in the shop and while he was looking for signs of damage, he was suddenly confronted by a masked burglar at a distance of only a few inches. The man was holding a knife and said "I'll get you, man". The burglar got away. The appellant called the police and was able to give a sufficient identification for the burglar to be apprehended at his home with property he had taken from the shop. The appellant went to his doctor. In those days it was not recognised that any stress injury claim could be made under the Accident Compensation Act 1982 independently of physical force or strain inducing the stress in the first place and no claim was made at the time. The appellant did not suffer cardiac arrest until 16th March 1989 and his general practitioner gave the opinion that the stress of the confrontation after the burglary could be assumed to be a contributing cause. There is a question of causation but that can be put aside because of the legal argument advanced by the Corporation that a cardiovascular accident cannot qualify for cover unless it falls within s 4 of the 1992 Act defining "personal injury". Section 4 provides: 4. Definition of "personal injury"- (1) For the purposes of this Act, "personal injury" means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by section 8 (3) of this Act. (2) For the purposes of this Act, no cardio-vascular or cerebro-vascular episode shall be regarded as personal injury unless- (a) It is a result of medical misadventure; or (b) It is a work injury by virtue of section 6 (1) of this Act. Work injuries are defined: 6. Definition of "work injury" - (1) For the purposes of this Act 'work injury', in relation to any person, means personal injury arising out of and in 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. "Accident" means - (a) 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 ... A heart attack cannot itself constitute an accident because it does not involve application of force or resistance external to the human body. Not only is a heart attack not an "accident" but it is not personal injury in terms of the Act unless it comes within the scope of s 4(2). Cover for a work injury exists only when there is a cause associated with physical effort or physical strain. It has not been argued that the effect of fright could constitute physical strain, and such a submission could not be right. The review officer confirmed the Corporation's decision because the heart attack could not be brought within any of those statutory provisions for cover under the Act. I conclude that the review officer was correct in his decision and therefore this appeal is dismissed. DATED at WELLINGTON this 18 day of october 1996 D A Ongley District Court Judge