The Injury Prevention, Rehabilitation and Compensation Act IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No.

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1 IN THE DISTRICT COURT AT WELLINGTON DECISION No. 33/2005 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 298/04) BETWEEN AND DAVID SIMM Appellant ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 23 November 2004 Appearances: J M Miller for appellant A D Barnet for respondent Judgment: 1 February 2005 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a preliminary question of law which the parties agreed to argue separately. The question is whether a claim for cover can lie under the Injury Prevention, Rehabilitation, and Compensation Act 2001 for lung cancer caused by passive smoking, diagnosed and first treated in [2] The appellant argues that cover can be considered for the disease or injury either as a work-related gradual process injury or as an accident. The difficulty is that personal injury caused by passive smoking was excluded from cover as a work- related personal injury under the Accident Insurance Act 1998, and cover under the transitional s360 of the 2001 Act is not available unless the injury would have been covered under the former Act. Background [3] Mr Simm lodged his claim for cover on 1 July 2002 after the commencement

2 of the 2001 Act. His claim is for cover for lung cancer caused by passive smoking, either as personal injury by accident per se or as injury or disease by work-related gradual process. [4] It is common ground that Mr Simm suffered lung cancer before 1 April 2002 and the diagnosis and first treatment was in Incapacity first occurred not later than the surgical treatment in November Argument [5] The respondent says that, quite apart from the factual issues of causation and significant risk, as a matter of law there is no cover available on this claim under the 2001 Act. The respondent says that the transitional provision in s360 of the 2001 Act applies and excludes cover: 360 Claim for cover under former Acts not lodged until on or after 1 April 2002 (1) Subsection (2) applies to a claim for cover, if the claim (a) is for personal injury suffered before 1 April 2002; and (b) is not lodged with the Corporation before 1 April (2) A claimant has cover under this Act only if (a) the claimant would have had cover under this Act, had the injury occurred on or after 1 April 2002; and (b) the claimant would have had cover under the Act that was in force at the time that the person suffered the injury. [6] While the claim would seem obviously to be for personal injury suffered before 1 April 2002 and therefore caught by s360, Mr Miller for the appellant argues that is not the case because passive smoking was not a personal injury under the 1998 Act and could not therefore have been a personal injury suffered before 1 April [7] Under the 1998 Act the exclusion of a disease caused by inhalation such as passive smoking came about through these sections of the Act. First the personal injury definition excluded gradual process injuries except for the categories specified in s39 of the Act: 29 Personal injury (1) Personal injury means (a) The death of an insured; or

3 (b) Physical injuries suffered by an insured, including, for example, a strain or a sprain; or... (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 39(2)(d), (e), (f), or (g). 39 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts) (Repealed) (1) An insured has cover for a personal injury if (a) He or she suffers the personal injury in New Zealand on or after 1 July 1999; and (b) The personal injury is any of the kinds of injuries described in section 29(1)(a), (b), or (c); and (c) The personal injury is described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to (a) Personal injury caused by an accident to the insured; or... (d) Personal injury caused by a work-related gradual process, disease, or infection suffered by the insured; or [8] For the purpose of argument it is accepted that lung cancer was a physical injury under s29(1)(a) and, but for a further exception, could have been a work- related gradual process disease or infection under s39(2)(d). Work-related gradual process injury is further defined by s33, and excludes a passive smoking disease in s33(3)(b): 33 Personal injury caused by a work-related gradual process, disease, or infection (1) Personal injury caused by a work-related gradual process, disease, or infection means personal injury - (a) Suffered by an insured; and (b) Caused by a gradual process, disease, or infection; and (c) Caused in the circumstances described in subsection (2). (2) The circumstances are - (a) The insured - (i) Performs an employment task that has a particular property or characteristic; or (ii) Works in an environment that has a particular property or characteristic; and (b) The particular property or characteristic - (i) Causes or contributes to the personal injury; and

4 (ii) Is not found to any material extent in the nonemployment activities or environment of the insured; and (iii) May or may not be present throughout the whole of the insured's employment; and (c) The risk of suffering the personal injury - (i) Is significantly greater for persons who perform the employment task than for persons who do not perform it; or (ii) Is significantly greater for persons who work in that environment than for persons who do not work in it. (3) Personal injury caused by a work-related gradual process, disease, or infection does not include - (a) Personal injury attributable to air-conditioning systems; or (b) Personal injury attributable to passive smoking; or [9] The basis for Mr Miller's argument is that injury attributable to passive smoking is not a form of personal injury for which there is no cover, but, more fundamentally, was not personal injury within the meaning of the 1998 Act because of s29(2). The exclusion occurs in the sections that carefully define what personal injury is and is not. It is submitted that injury attributable to passive smoking was not a workrelated gradual process injury, so was not personal injury under s29. [10] He submits that the personal injury did not occur until the date of commencement of the new Act, when it first fell within the statutory definition, and so it is now covered, without requiring resort to the transitional provisions. [11] The argument is necessarily semantic. Mr Miller makes no apology for that. He submits that the process of categorising injuries, cover and entitlements is one that leads to anomalies or unfairness in some cases. Answers have to be found by analysis of the wording of the statutes, and those answers might include or exclude cases perhaps unexpectedly. [11] Mr Miller submits however the result of including lung cancer treated in 1999 under compensation cover available from 1 April 2002 onwards is not unfair. It is within the general purpose and intent of the 2001 Act under which the danger of workplace passive smoking was recognised after having been excluded from cover as a gradual process injury from 1992 onwards. [12] Mr Barnett for the Corporation points to the inequality that may result if persons who have had their claims declined under those Acts have no cover, while persons who

5 delayed their claims achieved cover under the 2001 Act. He referred to Childs v Hillock [1994] 2 NZLR 65 in which Hardie Boys J, delivering the judgment of the Court of Appeal, said of a somewhat similar argument that if the argument was correct, it would mean that a cunningly advised injured person could have obtained a right, in that case the right to sue, merely by not lodging a claim before the commencement of the new Act. He said that it is most unlikely that such a result was contemplated by a transitional section. [13] A point of difference in this case is that Mr Miller's argument does not depend on the transitional section s360. He argues that from the inception of the 2001 Act Mr Simm's condition became a covered personal injury, but until then it had not been a personal injury at all. Application of the argument [14] In developing the argument, Mr Miller submitted that the difference between what is personal injury that is not covered, and what is not personal injury at all has to be borne in mind. Passive smoking injury was excluded in the 1998 Act as not being personal injury at all. It was not merely a question of non-availability of cover. That is why it is said that s360 does not apply. [16] There is another hurdle for the appellant, namely the problem of the date, or deemed date, of occurrence of the injury if it is to be considered as personal injury under the 2001 Act. If s360 is out of the way, the claim depends on direct application of the 2001 act, not on the transitional provisions. But cover under Part 2 of the 2001 Act extends only to personal injury suffered on or after 1 April Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts) (1) A person has cover for a personal injury if - (a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and... [17] Mr Miller's argument is that the personal injury is suffered on or after 1 April 2002 because it is "suffered" continuously and is recognised by the statute at that date.

6 [18] The expression "suffers" personal injury is also one that is used in a particular sense in the two statutes. Section 37 of the 2001 Act says: 37 Date on which person is to be regarded as suffering personal injury caused by work-related gradual process, disease, or infection (1) The date on which a person suffers personal injury caused by a work- related gradual process, disease, or infection is the earlier of the following dates: (a) the date on which the person first receives treatment from a registered medical practitioner for that personal injury as that personal injury: (b) the date on which the personal injury first results in the person's incapacity. (2) Subsection (1) applies subject to subsection (3). (3) A person suffers his or her personal injury on the date specified in subsection (4) if he or she suffers the personal injury because, before 1 April 1974, he or she performed a task, or was employed in an environment, in the circumstances described in section 30(2). (4) A person to whom subsection (3) applies must be regarded as having suffered his or her personal injury on 1 July 1992, unless he or she actually suffers it on a date later than 1 July 1992 determined under subsection (1).... [19] Throughout s37 the words "suffer", and "suffering" which is used in the heading, are used with reference to the time when personal injury occurs. That is not consistent with a continuous notion that so long as the personal injury continues to cause some incapacity it is suffered, so that a person in that predicament suffers personal injury in New Zealand at any included date, in this case on or after 1 April [20] Mr Barnett submitted that, assuming for present purposes causation is proven, then as a matter of fact and applying the 2001 Act definition of "personal injury", the Appellant did suffer "personal injury" before 1 April On this approach it is immaterial that lung cancer caused by passive smoking was not "personal injury" as defined prior to 1 April The present law is to he applied to the facts both past and present. The change in definition does not change the facts. [21] Mr Barnett submitted that there are indicators in both Acts that personal injury is used in different senses, either as personal injury in fact, or personal injury as it is closely defined under the statute. The point is neatly illustrated by s33(3)(b) in declaring that "personal injury attributable to passive smoking" is not personal injury. An example in the 2001 Act is s26(2) which states:

7 (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). [22] Mr Barnett also submitted that the use of quotation marks or bold face type indicates that the drafter sometimes uses expressions in the sense in which they are closely defined in the Act and sometimes in a general sense. In the 1998 Act s29 uses quotation marks in the heading "personal injury", when defining the term for the purpose of the Act. In the 2001 Act a different drafting technique is used by inserting s19 for the sole purpose of using and defining key terms, including "personal injury". [23] Mr Miller urged caution and submitted that it could not have been intended that there should be an unacknowledged ritualistic system of distinguishing the meaning of expressions in the two statutes according to whether they were in regular typeface, or quotation marks or bold face type. [24] Leaving aside the last mentioned argument, I consider it clear that the expression "personal injury" is used variously in the two statutes as a description of fact, or as a statutorily defined expression. Accident [25] Mr Miller advances a further argument that the passive smoking disease was personal injury by accident as opposed to a gradual process injury. He submitted that the cause could have been a series of events. Accident is defined in s25 of the 2001 Act: 25 Accident (1) Accident means any of the following kinds of occurrences: (a) a specific event, or a series of events, that - (i) involves the application of a force (including gravity) or resistance external to the human body, or involves the sudden movement of the body to avoid such a force or resistance external to the human body; and (ii) is not a gradual process: (b) the inhalation or oral ingestion of any solid, liquid, gas, or foreign object on a specific occasion, which kind of occurrence does not include the inhalation or ingestion of a virus, bacterium, protozoa, or fungi, unless that inhalation or ingestion is the result of the criminal act of a person other than the injured person:...

8 [26] In response, Mr Barnett first submitted that in common usage the inhalation of smoke does not amount to a specific event or series of events involving the application of an external force. Whether the carcinogenic substance in smoke is in the form of a vapour or minute solids, it is not in common usage an application of force. It is a contrived notion. [27] Mr Barnett submitted also that, given that "inhalation" is a separately identified occurrence in s25(1)(b) in the definition of "accident", the context suggests a legislative intention that inhalation is not to be regarded as an application of force. There may be evidence in particular cases that inhalation of some substance involved an application of force, but the submission is that it does not generally follow, and there is no supporting evidence in this case. [28] Mr Barnett submitted that the claim has been advanced on the basis of exposure each time when Simm was in the smoko room. In this case, where exposure is said to have occurred over 35 years, so there could be over 26,000 specific occasions. There is no evidence of the number of occasions that would have been required to cause the disease, nor when those inhalations might have occurred over the 35 year span. [29] Finally, Mr Barnett submitted that the legislative history provides a clear indication that lung cancer caused by passive smoking has been consistently treated as a gradual process injury, not an accident. Section 7(3)(b) of the 1992 Act provided that: (b) Passive smoking - shall be deemed not to have been caused by gradual process, disease, or infection arising out of and in the course of employment for the purposes of this Act. [30] The evident purpose of that provision was to state that passive smoking, which could otherwise qualify as a gradual process injury, was not covered by the Act. There was apparently no need to exclude passive smoking as an accident because it was not considered to be able to be brought within the definition of an accident, which included "a specific event or series of events that involves the application of a force". If it was possible to advance passive smoking as the result of a series of events involving the application of force then s7(3)(b) would have had no effect. [31] Similarly, the clear exclusion of passive smoking as a work-related gradual process

9 injury, under s33(3)(b) of the 1998 Act, would be ineffective if cause could be attributable to a series of events under s25 of that Act. Decision [32] I find that passive smoking cannot be brought under s25 as injury caused by an accident. The historic argument is persuasive, that similarly constructed definitions in the 1992 and 1998 Acts have not contemplated passive smoking exposure as a series of events amounting to an accident. The same form of definition of accident was adopted in the 2001 Act and it could not have been intended that the suggested change in the accepted understanding of the definition would have been contemplated. [33] This is not a case in which the appeal should be allowed to go forward on the basis that scientific evidence might possibly establish that cancer caused by passive smoking could be caused by a limited series of events with the scope of s25. There is no suggestion that such evidence may be available and the hypothesis is no more than tentative. [34] Of course the precise process by which cancer from passive smoking may develop is not within the ordinary knowledge of unqualified persons and would be the subject of evidence. [35] The appellant's argument for cover for personal injury by accident has been put on the footing that the statute provides an avenue for such a claim in the case of a passive smoking disease. I hold that the statute does not provide for such cover because the matter has been the subject of continuing statutory exclusions which are clear in their purpose. Perhaps if new material were to be provided to suggest that the cause of the appellant's disease or injury was likely to have been a limited series of events contrary to the assumptions inherent in the drafting of the accident compensation statutes, then there might be a basis for appeal. But no such evidence has been suggested in this case. [36] For those reasons the appeal must be dismissed because the disease is not one originating from an accident within the meaning of the 1998 and the 2001 Act, the statutes deny cover for a work-related gradual process injury. [37] The appeal is dismissed.

10 Signed at Wellington on 1 February 2005 at Judge D A Ongley District Court Judge

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