Simm v. Accident Compensation Commission
Mr Simm lodged a claim for compensation under the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the 2001 Act") for lung cancer caused by passive smoking in the workplace, either as personal injury caused by accident or by work-related gradual process. His claim was rejected on the basis that personal injury caused by passive smoking was excluded from cover as a work-related personal injury under the former Accident Insurance Act 1998, and cover under the transitional provisions of the 2001 Act required the injury to have been compensable under the previous Act.
The parties agreed for the Court to decide as a preliminary matter of law whether cover could lie under the 2001 Act for lung cancer caused by passive smoking first treated in 1999.
In this decision, Ongley J found that the claim could not fall for cover under the 2001 Act, either as a personal injury caused by accident or as a work-related gradual injury - the matter had been subject to continuing statutory exclusions which were clear in their purpose.
This decision was unsuccessfully appealed: see Simm v. Accident Compensation Commission  NZHC 1634 (20 December 2006).