Simm v. Accident Compensation Commission

The appellant was denied cover for lung cancer caused by passive smoking in the workplace under the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the 2001 Act"). The insurer denied cover because, although the 2001 Act provided cover for this type of claim, the previous Act specifically excluded it, and the 2001 Act's transitional provisions required the injury to have also been compensable under the previous Act.

In the lower Court, Ongley J upheld the insurer's decision to deny coverage (see: Simm v. Accident Compensation Commission [2005] NZACC 33 (1 February 2005)). This was an appeal from Ongley J's decision.

The High Court rejected the appeal, agreeing with Ongley J that the exclusion was clear on the face of the legislation.

Simm v. Accident Compensation Commission [2006] NZHC 1634 (20 December 2006)

  • New Zealand
  • Dec 20, 2006
  • High Court of New Zealand

Parties

Plaintiff David Simm

Defendant Accident Compensation Corporation

Legislation Cited

Accident Insurance Act 1998 (NZ)

Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

None

Type of Tobacco Product

None

"Mr Miller said that “specific occasion” should be interpreted in the plural. He referred to s 33 of the Interpretation Act 1999. However in the context of the definition of “accident” in the legislation a different interpretation (that is, a singular interpretation) is required. In the first definition of “accident” the legislation has referred to “a specific event, or a series of events”. This second definition is confined to a “specific occasion”. There is also the problem, as with the first alternative under this part of the appeal, that to interpret the legislation in the way Mr Miller contended is inconsistent with the legislature having made a decision to exclude work-related passive smoking. My conclusion on this part of the appeal is similar to that in Winikerei v ACC HC WN CIV 1999-485-000008 27 July 2005 where the Court was concerned with foetal harm through alcohol consumption during pregnancy. For these reasons, if it is unfair to deny cover to claimants who first suffered lung cancer from passive smoking in the work place prior to 1 April 2002 and who continue to suffer lung cancer, that is a matter for Parliament to address and not the courts."