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Accident Compensation Cases

Bezzant v Accident Compensation Corporation (DC, 18/08/03)

Judgment Text

Judge M J Beattie
The issue in this appeal concerns the respondent's decision of 11 July 2001 whereby it declined the appellant's claim for cover for a fractured rib on the grounds that her injury had not been suffered as a consequence of an accident within the meaning of the Act. 
The parties to this appeal have agreed that this issue be determined on the papers and in that regard the Court has received written submissions from the appellant and from counsel for the respondent. 
The facts which are relevant to the determination of this issue are not in dispute and may be shortly stated as follows: 
On 22 June 2001 the appellant was a patient at Auckland Hospital and being treated there for pneumonia. 
In the course of that treatment she was given an antibiotic to which she suffered a severe reaction causing her to vomit and cough. 
In the course of her coughing, which she described as severe and violent, she suffered a fractured rib. 
On 4 July 2001 the appellant lodged a claim for cover for her injury and in her claim she stated that the circumstances of the accident were: 
“Being treated for pneumonia, cracked two ribs, coughing. ”
Although the claim form stated “two ribs” a subsequent medical certificate from the appellant's doctor indicated that only one rib was in fact fractured. 
By decision dated 11 July 2001 the respondent advised the appellant that her claim for cover was declined on the basis that her injury had not been as a consequence of an accident within the meaning of the Act, it stating that there had been no force or resistance external to the human body involved in the inflicting of the injury. 
The appellant sought a review of that decision and in his decision dated 14 December 2001 the Reviewer confirmed the respondent's decision, he finding that no external force or resistance had been involved in the incident. 
The issue in this appeal requires consideration of the definition of “accident” as contained in Section 28 of the Act. The only definition which is relevant to this issue is the definition in that section which states that “accident” means — 
“ … a specific event or series of events that involve the application of a force or resistance external to the human body. ”
Subsection 4 of that definition is also relevant, it stating — 
“The fact that an insured has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident. ”
In her submissions the appellant has certainly shown that she has grasped the nature and significance of the legal definition of accident for the purposes of the Accident Insurance Act, but she nevertheless contends that her rib injury was caused as a consequence of a resistance external to the human body. 
In her submissions the appellant identifies one of her source references as being “Human Anatomy and Physiology”. Fourth Edition. Elaine N Marieb, and I take it to be the case that in her description of the process of breathing, namely inspiration and expiration, she has quoted from that source although it is not stated as such in her submission. 
The appellant identified the meaning of “cough” as being “to expel air abruptly and noisily from the lungs” (Collins New Compact Dictionary) and from that starting point the appellant submitted as follows: 
“Quiet expiration in healthy individuals is a passive process that depends more on the natural elasticity of the lungs than on muscle contraction. As the inspiratory muscles relax and resume their initial resting length, the rib cage descends and the lungs recoil. Thus, both the thoracic and intrapulmonary volumes decrease. This compresses the alveoli, and the intrapulmonary pressure rises to about 1 mm Hg above atmospheric pressure which forces gases to flow out of the lungs. 
In contrast, forced expiration is an active process produced by contraction of abdominal wall muscles, primarily the oblique and transversus muscles. These contractions (1) increase the intra-abdominal pressure, which forces the abdominal organs superiorly against the diaphragm, and (2) depress the rib cage. The internal intercostal, latissimus dorsi, and quadratus lumborum muscles, may also help to depress the rib cage and decrease thoracic volume. 
Cough is a form of forced expiration, in which the epiglottis closes the larynx while the intrathoracic pressure increases, and then opens up to allow the explosive release of the air contained in the lungs. 
In the case of persistent cough, intrathoracic pressure is repeatedly higher than atmospheric pressure, creating an imbalance in the forces applied to the ribs, which support respiratory muscles. Eventually, a rib can fail to sustain the excessive force applied on its inner surface and fracture. 
As we can see, the fracture is the result from the LACK OF RESISTANCE exerted by the ATMOSPHERIC PRESSURE when compared to the intrapulmonary pressure. If the atmospheric pressure were equal or very close to the intrapulmonary pressure, a fracture would not occur. 
This situation can be compared to what happens to a tire if over-inflated. The pressure inside the tire is higher than the atmospheric pressure. If the difference in pressures exceeds the elasticity and the resistance to deformation of the tire, it will eventually explode. Would we consider a flat tire an accident or not? ”
It was on the basis of the foregoing that the appellant submitted that air pressure does work as a resistance in the process of breathing and in the act of forced expiration, such as coughing, she submitted that ordinary air pressure was a resistance external to the human body and as such it satisfied the requirements of the definition of ‘accident’ under the Act. 
Mr Tui, Counsel for the Respondent, submitted that atmospheric pressure was no more an external force for resistance than that of gravity and that this Court had already ruled in the decision of Stephens (196/98) that gravity per se was not a force or resistance. Counsel further submitted that this Court had already considered acts of sneezing as not involving an external force or resistance in its decisions in Slade (212/00) and Lovelace (264/00). 
I have considered the appellant's submissions, particularly in light of the description she has provided of the process of expiration and including coughing. In that description it is stated that intrathoracic pressure is repeatedly higher than the atmospheric pressure during the act of a cough. It is clearly that intrathoracic pressure which is applying the force to the ribs, and which in the appellant's case caused the fracture. As she noted, it was not so much a resistance exerted by atmospheric pressure but rather the lack of an equal resistance to the intrathoracic pressure generated from within her body which caused the imbalance. 
In those circumstances the scientific description which I take it has come from the reference to which the appellant refers, clearly identifies that it is an internal force. The word intrathoracic meaning from within the thorax. It was the intrathoracic pressure applied to the rib which caused the fracture and whilst it might be the case that a lack of resistance of atmospheric pressure brought about the imbalance, the resistance was not a factor. The definition does not include “lack of resistance”. If there was a lack of resistance it is likely that there would be no injury. 
Normal atmospheric pressure I find must be regarded as being a neutral condition and like gravity it does not per se play a part in the cause of an injury by accident. 
I concur with the observations of His Honour Judge Barber in the Lovelace decision (supra) which involved injury whilst sneezing. I find that the same circumstances equally apply where the injury is caused by coughing. In that decision His Honour stated: 
“The force involved in a sneeze is generated internally by the appellant's body. A sneeze results from an involuntarily contraction of muscles which forces the expulsion of air from the noise and mouth. The force therefore comes from the contraction and release of muscles inside the body. Whilst the sneeze may be caused by an external irritant the actual force involved in the sneeze is internally generated. In other words there is no external force or resistance involved in a sneeze which would lead to a definition of accident. ”
The other decisions of this Court which were referred to by Counsel for the Respondent are equally consistent with the reasoning in Lovelace
Accordingly then, I rule as a matter of law, that the circumstances of the appellant's coughing causing a cracked rib did not amount to that injury being caused by an accident within the meaning of Section 38 of the Act. It is the case therefore that even though the appellant has suffered a personal injury it has not been suffered as a consequence of an accident and therefore the respondent was correct to rule that the appellant was not entitled to cover under the Act for that injury. 
For the foregoing reasons therefore I find that the respondent's decision was correct and this appeal is dismissed. 

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