Manawatu District Council v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. 31 / q '+ Appeal No. DCA-63/94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATIER of an Appeal pursuant to PRVIEW No. 69/ 94 / 0099 Section 91 of the Act BETWEEN THE MANAWATU DISTRICT COUNCIL Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 1st day of June 1994 APPEARANCES Miss N Cronin for appellant Miss L Dall for respondent DECISION OF JUDGE AW MIDDLETON The issue in this appeal is whether the personal injury suffered by the appellant's employee Robert Large on 9 July 1993 arose out of and in the course of his employment and should therefore be classified as a work injury with the result that it affects the appellant's experience rating for the purpose of assessment of levies. 2 The facts which gave rise to the appeal are that Mr Large was employed by the appellant at the time he suffered the injury to his back on 9 July 1993. It appears from the evidence that Mr Large was permitted to take his employer's truck to his home each evening where it would be available to him if he was called out for emergency work on behalf of the appellant. I accept that it was not a requirement of his employment that he take the vehicle home, but that it does appear from the evidence that it had been a custom which had originated earlier in order to provide secure parking for the vehicle. On the morning of 9 July 1993 Mr Large drove the truck to the appellant's yard where he arrived at 7.20 am and while getting out of the truck strained his lower back. Mr Large was due to commence work at 7.30 am on that day. The respondent accepted that Mr Large had suffered personal injury by accident and it classified the injury as a work injury. On 9 November 1993 the respondent notified the appellant that it considered the accident to be a work injury within the definition of s.6 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant applied for a review of that decision and the review hearing took place on 8 February 1994. The Review Officer concluded his decision by stating: "It is my view that to be classed as a 'work injury' the condition must both 'arise out of - 1 and in the course of employment'. Both elements must be satisfied. It is therefore necessary to relate the particular circumstances of an event to the whole definition rather than consider each segment as though failure to meet the criteria of one limb, considered in isolation, disposes of the matter. In this instance had the applicant not been a Council employee he would not have been on their premises that morning. If he had not been permitted to take their vehicle home he would not have been alighting from it. In these simple terms the injury did arise out of and in the course of employment and must therefore be accepted as a work injury. In my view any other conclusion distorts the meaning and intent of the legislative definitions. As a consequence I wish to decline this application for review." Section 6 of the Act defines "work injury" as follows: 11(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; ... " By s.3 the following definitions are provided: 11(1) 'Arising out of and in the course of employment' means arising out of employment and arising in the course of employment. 3 (2) 'Arising in the course of employment', 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 (b) During any temporan; interruption of ·work for a meal or rest or refreshment, if the accident happens at the person I 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 I 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--- (J) While a person is travelling to or from the person I 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 _ (g) 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 I 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: (3) 'Arising out of employment', 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 4 (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: (4) 1 Place of employment' means 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'. 11 Miss Cronin submitted that the injury did not arise out of and in the course of the employment of Mr Large by the appellant and that it was therefore not a work injury. She submitted as the Review Officer had found, that in order to be defined as a 1 1 ·work injury11 such an injury must arise out of and in the course of employment and emphasised that both legs of the section must be fulfilled. Miss Cronin submitted that the fact that the injury occurred while the vehicle was located on Council grounds could not be said to be relevant to the causation of the injury itself. She submitted, for example, that had Mr Large stopped at a dairy on his way to work to purchase a newspaper and there suffered the injury, it could not be classified as a work injury. She submitted that as Mr Large was at his place of employment at the time the injury occurred, made the likelihood of him suffering an injury neither greater nor less. She further submitted that as Mr Large was not travelling to or from his place of employment at the time he suffered the injury, it did not arise out of and in the course of his employment. She also submitted that Mr Large had been permitted to take the vehicle home and it was not an obligation of his employment that he should do so. She also submitted that the injury occurred ten minutes prior to his requirement to start work. Miss Dall submitted that Mr Large was in the appellant's truck by and with the consent of the appellant and that the act of getting in and out of the truck did form part of his 1 1 employment tasks11 • She also submitted that he was clearly travelling to his place of employment and was an employee of the appellant. As I see the position, it is clear that Mr Large was permitted to use the appellant's vehicle for the purpose of travelling to and from his home which permission extended to his keeping the vehicle at his home overnight. I consider that that permission implies the requirement by the appellant that Mr Large will deliver the vehicle to the appellant's premises or to such place of work as the appellant will direct each day. Accordingly on the day in question I accept that Mr Large was required to deliver the vehicle to the appellant's yard. I dispute Miss Cronin's submission that Mr Large was not travelling in the vehicle at the time the injury occurred. It seems to me that this submission cannot be sustained as I have found that it was a requirement that Mr Large deliver the vehicle to the appellant's yard on the day in question and until he safely alighted from the vehicle I consider he was still travelling in it and had control of it on behalf of the appellant. 5 Miss Cronin also submitted that because Mr Large was not required to start work until 7.30 am and the accident occurred at 7.20 am, then he was not involved in an employment task. Again I reject this submission because as a prudent worker Mr Large would have to be at the premises prior to 7.30 am in order to park the vehicle and be available to commence work at 7.30 am. I consider he was in the appellant's yard in the course of his employment when the accident occurred. Accordingly, but for different reasons, I consider that the decision of the Review Officer was correct and the appeal is dismissed. DATED at WELLINGTON this '2...8 th day of J \.Av\q__ 1994 A W Middleton District Court Judge DCA63-94.doc09)