Sanford South Island Limited v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT BLENHEIM Decision No. 7 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN SANFORD SOUTH ISLAND 84/94 /04193 LIMITED of Timaru Appellant (Appeal No. DCA 30/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 30th day of January 1995 APPEARANCES B A Fletcher for appellant A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The appellant is the employer of Terence Joseph Ryan who suffered acute pain in his neck on 13 October 1993 while he was putting on his motorcycle helmet prior to leaving the appellant's premises following a day of work. He was diagnosed as 2 having suffered a muscle strain and his claim for cover was accepted by the respondent. The respondent requested a work injury report from the appellant which did not accept that Mr Ryan's injury was a work injury because it had occurred after he had finished work and was about to travel home. The respondent notified the appellant on 3 November 1993 that it considered Mr Ryan's injury to be a work injury. The appellant applied for a review of that decision. The Review Officer heard evidence from the appellant who said that when he finishes work his normal routine is to clock out and then change into his home clothes. He was apparently in a room where he keeps his motorcycle clothing preparing to go home and as he pulled on his helmet suffered a pain in his neck and shoulder. The Review Officer concluded his decision by stating: ' His injury occurred while he was pulling on his helmet. Although Mr Mitchell has submitted that there is no connection between the injury and any work related activity, I consider that the injury does fall within the definition of "arising out of employment" in that it occurred at his work place." The appellant has appealed against that decision. The provisions in the Act so far as they apply to this appeal are sections 6 and 3. Section 6 defines "work injury" as being: " 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;" The Act provides that the words "arising in the course of employment" in relation to a personal injury, mean an injury that occurs - "(a) While any employment task is being performed at a place of employment; or (b) 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 (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 or the exempt employer 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 - 3 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 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." While the section provides five different circumstances in relation to a personal injury arising in the course of employment and specifies that it must occur "while any employment task is being performed at a place of employment", the words "employment task" are not defined. However, s.3 does define "employment" as being: "Work engaged in or carried out for the purpose of pecuniary gain or profit; and, in the case of an employee, includes any period of paid leave other than paid leave on the termination of employment." Mr Fletcher submitted that the definitions therefore require that the injury must arise out of and in the course of employment and that both limbs of that phrase have to be established. He submitted, therefore, that having regard to s.3(a) it was necessary that the injury must also occur whilst the employee, in this case Mr Ryan, was performing an "employment task at a place of employment". It is also necessary to consider the definition provided in s.3 of the words "arising out of employment" which states: " 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 - (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 ( 6 ) the person may be working under an illegal contract; or (c) the person may have indulged in or have been the victim of misconduct, skylarking, negligence, or been the victim of any force of nature." Mr Fletcher submitted that as Mr Ryan had completed his days work and signed off and was merely putting on his helmet, that cannot be described as a task and consequently that the injury cannot therefore be one "arising in the course of employment". He submitted that while s.3(f) provided an exclusion from the definition while a person is travelling to or from that person's place of employment, it cannot be said that as Mr Ryan's travelling had not commenced because he was on his employer's premises all that meant was that the exception did not apply. He submitted that the Review Officer was wrong in deciding that as the exception did not apply the accident therefore arose in the course of employment. He submitted that it was important to have regard to the phrase "arising out of employment" and in particular the words that the injury must be one that "would not have occurred but for that person being in that person's place of employment." He submitted that the type of injury that occurred was not one that would have occurred but for Mr Ryan being at his place of employment. He said that it was the sort of injury which could have occurred anywhere. Mr Barnett submitted that I should adopt a fair, large and liberal interpretation of the words involved. He submitted that the definition as a whole includes events which would not normally be described as arising out of or in the course of employment, but which are covered by the definitions. By way of example he submitted the case of an injury to a person acting in contravention of instructions or while skylarking. He also gave by way of example, arising out of the definition, an accident occurring during a temporary interruption at work for a meal. It was his submission that as a whole "work injury" is given a very large and liberal meaning. He submitted further that taking a particular or global view of the definition it is apparent that "arising out of employment" means that the personal injury occurs at the "person's place of employment". He submitted that the definition of "arising out of employment" does not intend to provide limitations on that dominant theme. In support of his submissions he stated that the liberal interpretation would be that if a personal injury occurs at the place of the person's employment then it constituted a "work injury". While in some cases the sections provide for examples of what may constitute an injury arising in the course of employment, I consider that the words "arising out of and in the course of employment" must envisage that both legs of that definition are established. An "employment task" must be being performed at the place of employment at the time an injury occurs in order to bring it within the meaning of "arising in the course of employment". An "employment task" is one which must be carried on for the purpose of pecuniary gain or profit and must therefore mean a work related job. Mr Barnett submitted that by adopting a broad or global view of the definition then the dominant consideration of the definition of "arising out of employment" is that the personal injury occurs at the "person's place of employment" and that the definition of "arising in the course of employment" does not intend to provide limitations on that theme. He told me that the respondent has adopted that approach in the guidelines for its staff and that in its view "arising in the course of employment" means: 5 " The injury occurs in a place of employment or an environment over which the employer generally has control". While that may well provide a broad and liberal interpretation each case must still be considered on its own facts and regard must still be had to the qualification that the injury occurred "while any employment task is being performed at the place of employment". The only ingredient of all the definitions which can be said to apply to Mr Ryan is that he was within the appellant's premises at the time the injury occurred. The injury could just as easily have arisen had he wheeled his cycle out of the gate and then put on his helmet. Accordingly, I consider that the Review Officer was wrong and that Mr Ryan's injuries did not arise out of and in the course of employment. The appeal is allowed and there will be costs to the appellant of $700.00. DATED at WELLINGTON this 16day of February 1995 Quinadula A W Middleton District Court Judge dc30-94.doc(mh)