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Accident Compensation Cases

ACCIDENT COMPENSATION CORPORATION v BOOTH (HC, 05/11/90)

Judgment Text

JUDGMENT OF HOLLAND, J 
HOLLAND, J
The Accident Compensation Corporation appeals against a decision of an Appeal Authority given on 31 October 1988 holding that the respondent had established that he had suffered personal injury by accident within the meaning of the Accident Compensation Act 1982 and directing that the file be returned to the Corporation to enable it to assess the compensation. 
The circumstances are that some six years ago on 17 December 1984 the respondent, while serving as a seaman on the ship M.V. Holmdale, then berthed at the Chatham Islands, ate some saveloys. A short time later he became violently ill and suffered an episode of acute diarrhoea and vomiting caused by food poisoning. 
The respondent did not make a speedy recovery, and in February 1985 was admitted to the Christchurch Public Hospital where his symptoms were diagnosed as multiple pulmonary emboli (lung clots) and membranous glomerulonephropathy (a non inflammatory disease of the renal glomeruli). Treatment was prescribed and he was discharged from hospital after a period of some three and a half weeks. He made a claim for compensation under the Act but the claim was declined on the basis that he had not suffered personal injury by accident. This decision was upheld when it was referred to a review officer but on appeal was reversed. The evidence makes it clear that the respondent, until the episode of eating the saveloys on the Holmdale, had appeared to be a fit and healthy seaman and that from that time onwards he has been beset by medical problems referred to in laymen's terms as multiple lung clots and kidney problems. 
There are some difficulties over the medical evidence. The claim was made on 11 November 1985. The injuries described in the claim form was “food poisoning”. The respondent's general practitioner, Dr Chambers, said in a letter dated 14 August 1985:— 
“This man had acute food poisoning in December 1984 on board the Holmdale. He has had a series of illnesses since then which are due to emboli in his lung and which are subsequent and the result of the illness on the ship in January. ”
He was referred to Dr H. Ikram, a consultant cardiologist who said on 3 September 1985:— 
“I think there seems little doubt that his ill health dates from the episode on board ship in December 1984. However, to prove that multiple thromboembolism, and indeed membraneous glomerulonephropathy is related to this is going to be exceedingly difficult. I share your view that some toxic substance could well have caused all of these problems. I am not an expert on the kidney but I know that severe dehydration induced by diarrhoea and vomiting can lead to veinous thrombosis with subsequent pulmonary embolism. ”
On 18 March 1986 the Accident Compensation Corporation referred the matter to a renal physician at the Christchurch Public Hospital. A reply was received dated 21 May 1986 by Dr R.R. Bailey, Head of the Department of Nephrology at the Christchurch Hospital. The opinions of Dr Ikram and Dr Chambers were referred to Dr Bailey and considered by him together with the hospital records relating to the treatment of the respondent. Dr Bailey described membraneous nephropathy as being:— 
“usually idiopathic, i.e. no cause is found, but it has been well documented to follow certain medications. … One of the very well documented complications of membraneous nephropathy and its complicating nephrotic syndrome is that of thromboembulism, and I am sure that this was the reason for his initial presentation. … I feel it is extremely unlikely that the so-called episode of ‘acute food poisoning’ actually caused his membraneous nephropathy. Certainly a patient with this very slowly progressive form of renal disease may have a deterioration in health with any intercurrent illness. One of the other important complications of the nephrotic syndrome is that of the risk of infection and this is because the immunoglobulins are lost in the urine. In fact in the pre-antibiotic era the major risk to the patient with the nephrotic syndrome was that of complicating infections. I would tend to favour this as the mechanism in your client. ”
The Accident Compensation Corporation declined the claim and an application for review was made on 12 June 1986. A review was not able to be held until March 1988 when the respondent appeared before the review officer but with no new medical evidence. The review officer declined to review the decision. There was then an appeal to the Appeal Authority. The Appeal Authority said:— 
“However, I agree with Mr Black's submission that Dr Chambers and Dr Ikram both consider that the cause of the appellant's problem was the food poisoning from having eaten the saveloys. It seems to me that both Dr Chambers and Dr Ikram, who had early association with the appellant's problem, could attribute no other cause than the episode of food poisoning, while Dr Bailey who had to rely only on reports, felt that it was extremely unlikely. I am persuaded to the view that I must accept the diagnosis of Drs Chambers and Ikram. ”
With respect to the Appeal Authority, it does not appear that the respondent was referred to Dr Ikram until after his discharge from hospital where he had been treated for multiple pulmonary thromboemboli under the care of Dr B. Tait. Undoubtedly Dr Ikram as cardiologist saw the respondent in August 1985 but the Appeal Authority appears to have given little weight to the statement by Dr Ikram that he was “not an expert on the kidney”, and he referred to the difficulty in proving that the matters being dealt with in 1985 related to the food poisoning incident. 
Indeed, all he said was:— 
“I share your view that some toxic substance could well have caused all of these problems. ”
In the notice of appeal to this Court the Accident Compensation Corporation has said:— 
“The facts are not in dispute and are as set out in the Authority's decision. ”
Notwithstanding that statement in the notice of appeal, counsel for the Accident Compensation Corporation has submitted to me that the finding that any injury suffered by the respondent after the immediate attack of food poisoning was due to the food poisoning, was a finding which was against the weight of evidence. 
Counsel for the respondent took no formal objection to this change of front by the appellant but did submit that he did not anticipate facing any difficulty with the medical evidence. The appeal to this Court is not restricted to issues of law. In the circumstances I cannot see that the respondent is prejudiced in this appeal by the appellant challenging the finding. It is clear that the appeal has been brought with a view to obtaining an authoritative ruling that food poisoning and any injury suffered thereby is not personal injury by accident within the meaning of the Act. In order to consider that question, in this case, it is necessary to consider the medical evidence. In case there should be any doubt as to whether leave was granted to appeal other than on a question of law — the record of the reasons for granting leave by the Appeal Authority is equivocal — special leave is granted, if required, pursuant to s 111 of the Act on the basis that the question involved is one which by reason of its general or public important ought to be submitted to the High Court. 
I must state at the outset that having read the evidence and heard the submissions I have considerable sympathy with the conclusions of the Review Officer who said at p4 of her decision:— 
“Having heard Mr Booth's evidence, I am satisfied that he did become ill after eating saveloys. However, I am not satisfied that this necessarily amounts to acute food poisoning as alleged by Mr Booth. There is simply no medical evidence on the file to support this. I appreciate that in the circumstances this might have been difficult to obtain but the fact remains that there is no evidence to support this particular aspect of the case. Some months later Dr Chambers apparently considered a toxic substance could have caused Mr Booth's kidney disease. This view was apparently shared by Dr Ikram, although he acknowledged he was not an expert on the kidney. Dr Bailey, who, clearly, is such an expert, does not support Mr Booth's claim. I note Mr Booth's comment that Dr Bailey did not examine him, but Dr Bailey has had access to all the relevant hospital notes. In any event, what is particularly relevant in his report is his discussion of the causes of membranous nephropathy. It seems clear to me from his report that there are a number of causes of this condition and Dr Bailey obviously considered it extremely unlikely that food poisoning could be the cause in Mr Booth's case. I therefore consider the weight of medical evidence is against acceptance of Mr Booth's claim. Not only is there insufficient evidence as to the nature of the illness experienced by Mr Booth in December 1984, but in my opinion the causal link between the illness and Mr Booth's subsequent health problems has not been established. I should also point out that, in general, food poisoning is not acceptable as personal injury by accident. Consumption of contaminated food is no different in principle from infection inhaled with the breath, or a virus absorbed through the skin, eye or nose, none of which is generally accepted as personal injury by accident. I therefore confirm the Corporation's decision and decline the application for review. ”
The Appeal Authority on the other hand said at p5:— 
“I accept Mr Black's submission that Dr Ikram, in his report of 3 September 1985, states that the appellant ‘developed what was subsequently diagnosed by the doctor a week later as food poisoning’, and that this had been confirmed by Dr Chambers in his letter of 14 August 1985. Dr Chambers described the appellant's condition as ‘severe toxic illness’
In my view I am persuaded that the evidence does show that the appellant suffered from acute food poisoning by the consumption of the saveloys on 17 December 1984. The review officer appears to have been persuaded by Dr Bailey's statement that he thought ‘ … it is extremely unlikely that the episode of acute food poisoning actually caused his membranous nephropathy’ and that this led her to confirm the Corporation's primary decision. However, I agree with Mr Black's submission that Dr Chambers and Dr Ikram both consider that the cause of the appellant's problem was the food poisoning from having eaten the saveloys. It seems to me that both Dr Chambers and Dr Ikram, who had early association with the appellant's problem, could attribute no other cause than the episode of food poisoning, while Dr Bailey, who had to rely only on reports, felt that it was ‘extremely unlikely’. I am persuaded to the view that I must accept the diagnosis of Drs Chambers and Ikram. ”
Later at p6 the Appeal Authority said:— 
“I agree with his submission that the action of this appellant in eating contaminated food is distinguishable from the type of infections or viruses inhaled or absorbed into the system and I take the exclusion to the definition to contemplate that type of disease or infection, i.e. the passive inhalation or absorption of the irritant. In this case the appellant quite openly consumed the food, but without the knowledge that it contained a toxic substance. This then led to the very substantial trauma he suffered shortly thereafter and to the subsequent onset of his disease. ”
and at p7:— 
“I consider that where the appellant, as in this case, has unwittingly consumed contaminated food which has brought on consequences which were clearly unintended it does constitute unexpected and undesigned mishap, which then brings the case within the definition of personal injury by accident, and can be distinguished from the type of disease contemplated by passive inhalation or absorption of infection. ”
The findings of the Review Officer have considerably more appeal to this Court than they appeared to have to the Appeal Authority. I am not satisfied from reading the evidence that Dr Chambers and Dr Ikram “both consider that the cause of the appellant's problem was the food poisoning”. (The underlining is mine.) Clearly the appellant's problems did not appear until after the incident of food poisoning but that does not necessarily create a cause of the problems. There appeared to me on the evidence little reason not to accept the findings of Dr Bailey who was agreed by all to be the expert in the field, particularly in the light of Dr Ikram's acknowledgement of lack of expertise and uncertainty in diagnosis. 
Although I could dispose of this appeal by finding for the Commission on the facts, I do not consider that in the way in which the appeal has been brought that would be fair to the respondent, nor would it provide the Commission with an answer to the question it poses which would have some effect on other cases. The issue which the Commission wishes to have decided is whether the consequences of an infection obtained by consuming food or drink can, at law, amount to personal injury by accident under the Act. 
The phrase “personal injury by accident” is not exclusively defined in the Act. Section 2 provides an extended definition to the ordinary meaning of the phrase under paragraph (a) as follows:— 
“(a)
Includes — 
(i)
The physical and mental consequences of any such injury or of the accident: 
(ii)
Medical, surgical, dental, or first aid misadventure: 
(iii)
Incapacity resulting from an occupational disease or industrial deafness to the extent that cover extends in respect of the disease or industrial deafness under sections 28 and 29 of this Act: 
(iv)
Actual bodily harm (including pregnancy and mental or nervous shock) arising by any act or omission of any other person which is within the description of any of the offences specified in sections 128, 132, and 201 of the Crimes Act 1961, irrespective of whether or not any person is charged with the offence and notwithstanding that the offender was legally incapable of forming a criminal intent: ”
Paragraph (b) then goes on to provide specifically for exceptions as follows:— 
“(b)
Except as provided in the last preceding paragraph, does not include — 
(i)
Damage to the body or mind caused by a cardio-vascular or cerebro-vascular episode unless the episode is the result of effort, strain, or stress that is abnormal, excessive, or unusual for the person suffering it, and the effort, strain, or stress arises out of and in the course of the employment of that person: 
(ii)
Damage to the body or mind caused exclusively by disease, infection, or the ageing process: ”
It is not suggested that the respondent's injuries or complaint resulted from an occupational disease under para (a)(iii). The real issue is whether the injuries or complaint of the respondent fall within exception (b)(ii) as being “damage to the body … caused exclusively by … infection … ” so as to exclude the injuries or complaint from being personal injury by accident under the Act. 
The first difficulty is to determine what is meant in the opening phrase of para (b) by the words:— “Except as provided in the last preceding paragraph”. If these words are applied literally it would mean that damage to the body caused exclusively by disease, infection, or the ageing process is not excluded from personal injury by accident if such damage came within the ordinary meaning of personal injury by accident. 
In Green v Matheson [1989) 3 NZLR 564 the Court of Appeal said at p571:— 
“It has long been recognised by the Courts that the natural and ordinary meaning of accident cannot be defined with complete precision, but the traditional starting point is Lord Macnaghten's definition in Fenton v Thorley & Co. Ltd (1903) AC 443, 448, ‘an unlooked-for mishap or an untoward event which is not expected or designed.’ We have been guided by this in New Zealand. ”
Food poisoning to the respondent in this case was undoubtedly an unlooked-for mishap or an untoward event which was neither expected nor designed. It must be remembered however that the definition taken from Fenton v Thorley & Co. Ltd is to be no more than a “traditional starting point”. The question is one of statutory construction of a unique statutory provision providing for compensation for injuries sustained by accident and without being in any way dependent on negligence. It was likewise a statutory provision intended not to provide for compensation for those suffering solely from illness by disease infection or ageing processes. 
The problems were recognised and carefully considered in a lengthy decision given by another Appeal Authority, Mr B.H. Blackwood, subsequent to the delivery of the present decision under appeal delivered by Judge Middleton. In Decision No. 219/90 McMillan v Accident Compensation Corporation 20th August 1990, Mr Blackwood declined to follow the decision of Judge Middleton in this case. Mr McMillan had consumed infected food in a coffee house which was claimed to have triggered off a condition known as Guillan Barre Syndrome. The Appeal Authority considered the claim as if it were one for medical misadventure. He analysed three Court judgments and stated they revealed four propositions. Some amendment to those propositions might be required if the decision which I have recently delivered in Polansky v Accident Compensation Commission (No. AP210/89 Wellington Registry, Decision 30 August 1990, unreported) correctly states the law. (I have given the Accident Compensation Commission leave to appeal to the Court of Appeal.) 
However, I do not see the present as a case of medical misadventure at all. It is simply an allegation that the respondent suffered bodily injury by food poisoning leading to more serious and permanent injury and that the food poisoning was caused by accident. Mr Blackwood dealt with this aspect by holding that the exception excluding damage to body or mind caused exclusively by disease, infection or the ageing process was clear and unambiguous. With respect to Mr Blackwood he has not referred to the ambiguity created by the words:— “except as provided in the last preceding paragraph”
Mr Blackwood then went on to say at p9:— 
“In excepting from personal injury by accident damage caused exclusively by disease or infection Parliament may appear to have drawn a very fine distinction, particularly when cases such as Barbarich and Curd are considered. The duty of the Appeal Authority is, however, to interpret the will of the legislature as it has expressed itself, and the word ‘exclusively’ cannot be ignored and must be given meaning. I accordingly conclude that if disease or infection causes bodily damage (leaving aside occupational disease) it is not compensatable under the Act unless the disease or infection was precipitated by physical trauma which itself caused bodily damage however minor or trivial. The ingestion of bacterial agents, even if the time, place and item are clearly identified, cannot in my opinion be classified as a physical trauma. I therefore hold (leaving aside occupational disease) that food poisoning leading to disease or infection does not constitute personal injury by accident and is not compensatable under the Act. It follows that I respectfully disagree with and decline to follow the decision in Booth. I hold that if the campylobacter infection suffered by Mr McMillan arose outside the workplace he is not entitled to cover under the Act. ”
It is common ground that if there were an “accident” it was an infection obtained from consuming poisoned food. I am unable to see any logical or legal distinction justifying a conclusion that an infection obtained by consuming food is any more or less of an accident than an infection obtained by contact with a person carrying an infection unknown to the donee or even obtaining an infection “inhaled or absorbed into the system” as was stated by the Appeal Authority in the present case. Mr Somers recognised the difficulties in this regard and submitted that in most such cases the actual manner in which the infection was obtained could not be ascertained. That may well be so in many cases but there will be many cases where the source of the infection can be established. In all cases the infection will be an unlooked-for mishap neither expected nor designed as far as the patient is concerned. 
It is obvious that the Act left some grey areas for determination. (See Willis v Attorney General (1989) 3 NZLR 574 at p576 lines 51-56.) 
It can be confidently stated that when the Accident Compensation Act was first introduced in 1972 or later substituted in 1982 that no reasonable person could have contended that a person suffering from an infection, or an illness following from an infection, was suffering from a personal injury by accident. There were specific provisions in Workers' Compensation Acts and indeed in this Act for occupational diseases and the like. Some support for the extension of the phrase may have arisen from the extension contained in paragraph (a)(i) of the statutory definition which includes “physical and mental consequences of any such injury or of the accident”. In that case however there must first be an accident or an injury by accident. 
Although undoubtedly the exclusions provided for in paragraph (b) of the statutory definition could have been more happily worded, I am persuaded that the exception of the provisions of paragraph (a) was intended solely to ensure that where there was an injury by accident in the generally accepted meaning of the term such as an open cut or wound, and infection or disease followed, such as gangrene, then the victim should be entitled to compensation for the original injury and the gangrene. The words of the exception in para (b) can be given a meaningful interpretation if they are applied only to cases where there has been a personal injury by accident independently of the subsequent or even contemporaneous disease or infection. 
I accordingly agree with the conclusions of Mr Blackwood in McMillan's case and disagree with the conclusion in the case before me. 
As there was no personal injury by accident it is unnecessary to consider whether the subsequent injuries of the respondent were caused by the food poisoning but I cannot refrain from expressing grave doubts as to whether the decision in that respect on the facts was correct. 
The appeal will be allowed. The decision of the Appeal Authority is reversed and the decision of the Review Officer is restored. There will be no order as to costs in this Court or before the Appeal Authority. 

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