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Accident Compensation Cases

Accident Compensation Corporation v D (HC, 16/05/07)

Judgment Text

JUDGMENT OF MALLON J 
Mallon J
Introduction 
[1]
The issue on this appeal is whether pregnancy is a “physical injury” and can therefore constitute a “personal injury”1
| X |Footnote: 1
Sections 20(1)(b) and 26(1)(b) of the 2001 Act. 
under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”). 
[2]
The context is a failed tubal ligation performed by the second respondent on the first respondent. The tubal ligation procedure was undertaken in October 2002 because the first respondent, who had four children, did not wish to have any further children. The first respondent fell pregnant in 2003 and gave birth to a son, by a caesarian section, in March 2004. The son was born with a heart condition and has extreme eczema and as a result needs on-going medical assistance. 
[3]
If pregnancy can constitute a “personal injury” then cover would be sought on the basis that the personal injury was caused by medical misadventure (as being a medical error or mishap). This matter would be referred back to a reviewer (under the ACC review process) to consider whether the pregnancy was caused by medical misadventure. 
[4]
The issue is of general importance because it affects whether cover might be available for pregnancies following failed sterilisation procedures.2
| X |Footnote: 2
Skegg & Paterson (ed), Medical Law in New Zealand, 2006 (at 25.11) refers to the need for authoritative guidance on this issue. 
Since 1992 cover has not been made available to claimants in this situation. If cover is available, as well as affecting the costs of the ACC scheme3
| X |Footnote: 3
Mr Hope, counsel for the respondent, made the general submission that at worst there may be some shifting of costs from one state agency to another but I do not have specific information about this. There was some evidence that the frequency of failed tubal ligations is less than 1% but there are no figures available as to how many tubal ligations are performed each year. 
and what claimants can recover and from whom, it affects whether doctors performing those operations are able to be sued.4
| X |Footnote: 4
Section 317 of the 2001 Act prevents any proceedings independent of the Act “for damages arising directly or indirectly out of personal injury covered” by the 2001 Act (or former Acts). 
 
Background 
[5]
The first respondent made an application for cover under the Act. This was declined by ACC pursuant to ACC's policy that pregnancy cannot be considered to be an injury. This policy stated that “[w]hile it may be an undesired event following tubal ligation, it is still a natural physiological function, rather than a physical injury”. The policy also referred to an absence of a direct causal link between the pregnancy and the medical treatment. It said that “[i]ntervening factors in these cases are sexual intercourse, and in some cases, recanalisation of the fallopian tubes”. ACC had also found no medical error or medical mishap. 
[6]
ACC advised the first respondent that its decision was consistent with previous failed tubal ligation procedures in respect of which ACC had declined 72 claims between 1992 and 2003. 
[7]
ACC's decision was upheld by the reviewer on the basis that there had been no personal injury. The reviewer said that he was bound by the District Court decisions that had consistently held that pregnancy was not a personal injury. The reviewer did not go on to consider whether there had been a medical error or mishap. 
[8]
The first respondent appealed to the District Court. The District Court allowed the appeal finding that pregnancy could constitute an injury for the purposes of the Act. The District Court said that it agreed with the reasoning in Patient A v Health Board X HC BLE CIV 2003-406-14, 15 March 2005 and further that it was appropriate for the District Court to follow the fully considered conclusion in that case. The District Court also considered that its decision was consistent with comments in SGB v WDHB [2002] NZAR 413. The District Court referred the matter back to the reviewer to determine the factual issues relevant to whether a medical misadventure had occurred. 
[9]
The District Court subsequently granted leave to bring this appeal. The notice of appeal included two questions of law but Mr Corkill advised that the sole question to be determined on this appeal was, “by being pregnant, did the appellant suffer an injury within the meaning of the Act”. That was the sole question argued before me.5
| X |Footnote: 5
My decision therefore does not deal with the position where the man (rather than the woman) undergoes the sterilisation procedure. See Skegg & Paterson (at 25.11) referring to this issue. 
 
Summary of submissions 
[10]
The appellant contends that pregnancy is not a “physical injury” and is therefore not a “personal injury”. It submits that the District Court erred by: 
a)
Not applying the natural and ordinary meaning of “physical injury” as set out in Teen v ARCIC HC WN CIV 2003 4850001478, 11 November 2003, and as recognised by Cooke J (as he then was) in L v M [1979] 2 NZLR 519
b)
Not considering the distinction between the definitions of “personal injury by accident” under the earlier accident compensation legislation and the definition of ‘personal injury’ in the 2001 Act; 
c)
Placing undue weight on common law dicta (where the courts are not required to decide whether pregnancy is a “physical injury” before awarding damages) and policy factors; 
d)
Not recognising that if pregnancy was a personal injury potentially there would be cover for accidental pregnancies outside medical misadventure claims; 
[11]
The respondents submit that pregnancy is within the natural and ordinary meaning of “physical injury”. Pregnancy is a “harm” to the body when a person has undertaken a sterilisation procedure to prevent pregnancy. Alternatively, relying on Patient A, it is an interference with “bodily integrity” and that is the natural and ordinary meaning of “physical injury”. However if an expansive definition is necessary, that is not inconsistent with the legislative changes that have taken place under the accident compensation regime and it is consistent with the developing case law and policy considerations. Further it would need not have the consequence of providing ACC cover for all accidental pregnancies. 
[12]
Counsel are agreed that there is no binding authority on the question before me. There have been a number of decisions that have considered whether pregnancy is covered but they were decided under earlier legislation, or by the District Court or were obiter. The issue is one of statutory interpretation. The meaning of the words “physical injuries” must be considered in their context and in light of their purpose. 
Historical context and approach 
The period 1972 to 1992 
Statutory test 
[13]
Under the Accident Compensation Act 1972 (“the 1972 Act”) cover was provided for “personal injury by accident”.6
| X |Footnote: 6
Section 2(1) 
As initially enacted, the definition of that term referred to it as including incapacity resulting from certain occupational diseases. No other more comprehensive definition was provided. 
[14]
Pursuant to section 2(1) of the Accident Compensation Amendment Act 19747
| X |Footnote: 7
Substituted on 8 November 1974. 
a more detailed definition was provided. The definition remained an inclusive, rather than comprehensive, one. “Personal injury by accident” was defined as including: 
“a)
the physical and mental consequences of any such injury or of the accident;8
| X |Footnote: 8
(a)(i) 
 
b)
medical, surgical, dental, or first aid misadventure;9
| X |Footnote: 9
(a)(ii) 
 
c)
incapacity resulting from certain occupational diseases;10
| X |Footnote: 10
(a)(iii) 
and 
d)
actual bodily harm arising in the circumstances specified in s 105B of the 1972 Act.11
| X |Footnote: 11
(a)(iv) 
 ”
[15]
Section 105B(1) provided that “for the purposes of subsection (2) of this section the expression ‘actual bodily harm’ includes pregnancy and mental or nervous shock”. Under s 105B(2) actual bodily harm arising from certain sexual offences12
| X |Footnote: 12
Sections 128, 132 and 201 of the Crimes Act 1961. 
was “deemed to be personal injury by accident”
[16]
In addition to specifying the above matters as being within “personal injury by accident”, there was a specific exclusion for certain cardio-vascular or cerebro-vascular episodes13
| X |Footnote: 13
(b)(i) 
and damage caused exclusively by disease, infection, or the ageing process.14
| X |Footnote: 14
(b)(ii) 
 
[17]
Amongst other entitlements, the 1972 Act provided compensation for “non-economic loss”. In particular lump sum compensation was payable for “permanent loss or impairment of any bodily function”.15
| X |Footnote: 15
Section 119. 
Lump sum compensation was also available for: 
“a)
The loss suffered by the person of amenities or capacity for enjoying life, including loss from disfigurement; and 
b)
Pain and mental suffering, including nervous shock and neurosis.16
| X |Footnote: 16
Section 120(1). 
 ”
[18]
The Accident Compensation Act 1982 (“the 1982 Act”) was the same as the 1972 Act (as amended in 1974) except that, what was s 105B in the 1972 Act, was incorporated directly into the s 2 definition of “personal injury by accident”. This meant that the definition included “actual bodily harm (including pregnancy and mental or nervous shock) arising” from the specified sexual offences. Compensation for “non-economic loss” was available under the same two categories as under the 1972 Act.17
| X |Footnote: 17
Sections 78 and 79. 
 
Cases 
[19]
The starting point in the cases dealing with pregnancy as an injury is L v M. This case concerned a failed sterilisation procedure performed on a woman. At the time the procedure was performed the 1974 amendment was not in force. The original 1972 definition of “personal injury by accident” therefore applied. A claim of negligence was brought against the doctor. 
[20]
The statement of claim alleged that as a result of the negligence the plaintiff had “undergone an unwanted pregnancy and childbirth and has suffered physical and mental distress”. General damages of $12,000 and special damages for hospital expenses were claimed. The doctor sought a stay of the proceeding so that ACC18
| X |Footnote: 18
Then the Accident Compensation Commission. 
could determine whether the woman had cover under the 1972 Act. 
[21]
The majority of the Court of Appeal did not consider the issue of cover under the legislation because they considered that ACC had exclusive jurisdiction, subject to appeal rights, to determine that question. Only once that had been determined could the Court consider whether the claim in negligence was statute barred.19
| X |Footnote: 19
Section 5 of the 1972 Act barred proceedings independent of the 1972 Act for damages arising directly or indirectly out of a “personal injury by accident”
 
[22]
Cooke J (as he then was) dissented. He considered that the Court had jurisdiction to consider the question of cover. He considered that, because the 1972 Act contained no relevant special definition, “personal injury by accident” had to be understood in its ordinary sense. He considered that the conception and consequent childbirth could be said to have been caused by “accident” in its ordinary sense.20
| X |Footnote: 20
At p 529. 
He considered that “pregnancy” and “childbirth” could “not naturally be described as a personal injury”.21
| X |Footnote: 21
At p 530. 
His Honour said, however, that he accepted that “physical and mental distress” was a “personal injury” caused by a mistake in the operation (which was the “accident”).22
| X |Footnote: 22
At p 530. 
His view was that the negligence proceeding could proceed but the “physical and mental distress” aspect of the pleading needed to be struck out (as that could be the subject of a claim for cover). 
[23]
Cooke J went on to say23
| X |Footnote: 23
At p 530 
that under the expanded definition inserted in the 1974 amendment there was, he thought, a medical misadventure. He considered it to be arguable that it was “unnecessary to show as well anything that would ordinarily be called a personal injury”. He left this point to be decided in a future case. In subsequent cases this was the position taken, thereby not requiring the courts to decide whether pregnancy was a “personal injury” in its ordinary meaning. 
[24]
Before coming to those cases, the next relevant case in this period is XY v Accident Compensation Corporation (1984) 2 NZFLR 376. This case involved the same woman and circumstances as, and is the sequel to, L v M. As is set out in XY, between L v M and XY v ACC, ACC considered and granted the woman's claim for cover. She received a payment for pre-birth expenses. In addition a lump sum award of $2,500 was made for loss of amenities and/or pain and suffering.24
| X |Footnote: 24
Under s 120 of the 1972 Act. 
 
[25]
XY concerned a further claim for $18,603.62 for expenses incurred in the maintenance of the child. The High Court declined this further claim on the basis that what had been accepted as “the injury” (the pregnancy and birth) was healed after the birth of the child. In reaching this conclusion the High Court Judge (Jefferies J) was uncomfortable with viewing pregnancy and childbirth as an injury. 
[26]
His Honour said25
| X |Footnote: 25
At p 380. 
“This Court thinks the answer lies in an analysis of ordinary meaning of the words applying the accepted, even conventional views of human affairs. It has been decided, and it is not challenged in any way, that conception by a woman of a child in the circumstances was a medical misadventure and an injury. That itself could be described as a highly artificial result but it is the base from which we must proceed. It is also accepted that pregnancy and birth are still part of the injury. To name regeneration of the species, perhaps its most fundamental urge, an injury, in whatever circumstances, is to introduce novel and very fundamental changes to accepted human thinking. In the light of the foregoing for a Court to hold that once the birth had taken place there was no longer an injury and therefore by definition no loss could result from it seems an almost welcome return to normalcy. This Court does not find that our supreme legislative body intended to stigmatise possibly the highest expression of love between human beings, that of a mother for her child, as a continuing injury to her by making compensation payable during dependency. To put it simply after the birth of a normal healthy child the injury is entirely healed. The theory of this solution is that the artificiality which calls conception, pregnancy and the event of birth an injury ends with the event and normalcy reimposes itself. The Court takes care not to go further, as some decisions in other counties have done, by proclaiming the birth as a positive benefit. It is not necessary to this reasoning. The foregoing might be called the epitome of the answer but it can be expounded by looking at the words of the section.26
| X |Footnote: 26
The Court went on (at p 381) to question whether the maintenance of a healthy child could be considered an expense or loss. The Court said that sacrifice was not the same as loss, that many would say that it was their duty and privilege to raise their child and not that of the levy payers of an accident compensation scheme. 
 ”
[27]
There was similar discomfort with treating pregnancy as a “personal injury by accident” in ACC v Auckland Hospital Board [1980] 2 NZLR 748. This case again involved a failed tubal ligation procedure subsequent to which the claimant became pregnant. ACC had refused cover. The Accident Compensation Appeal Authority reversed this on appeal holding that there was a “personal injury by accident”. The High Court (Speight J) upheld this decision. There is no discussion on whether the pregnancy was an “injury”. There did not need to be. By this time the definition of “personal injury by accident” was defined as including “medical misadventure”. Consistent with the obiter view of Cooke J in L v M (see [23] above) the issue was whether what had occurred was a medical misadventure. If it was, it would be covered as a “personal injury by accident”
[28]
In finding that there was a medical misadventure the High Court concluded by stating:27
| X |Footnote: 27
At p 753. 
 
“Many persons might express surprise that the God-given ability to conceive and bear a child is to be described as a medical misadventure to be ‘compensated’. But that in my judgment is the result to which I am driven by the legislation. ”
[29]
The same approach as that taken in XY and Auckland Hospital Board was taken in H v ACC [1993] NZAR 481 where the sterilisation procedure (a vasectomy) was performed on the man. At this time the 1974 expanded definition under which “medical misadventure” was defined as being a “personal injury by accident” applied. 
[30]
The Accident Compensation Appeal Authority allowed a sum of $8,000 to the husband. This was said to be for the “significant loss of amenities and capacity for enjoying life and mental suffering” he endured as a result of his wife falling pregnant when they had planned their future and structured their affairs on the basis of having no more children and a dual income. The husband was also entitled to claim a sum for the birth expenses and ACC was requested to investigate a sum for earnings related compensation for a period of a few weeks maternity leave prior to the birth of the child. 
[31]
Earnings related compensation for maternity leave for any period subsequent to the birth was disallowed. Although maternity leave was said to be a proved loss “which resulted from the injury of an unplanned child” it arose as a direct result of “the wife's elective decision to take 12 months” maternity leave. Further, applying XY, after the birth of a normal healthy child “the injury is entirely healed” so that lost wages as a result of taking maternity leave were not a loss resulting from the injury. 
Summary 
[32]
In summary, in failed sterilisation cases under the 1972 Act as originally enacted, pain and suffering from a pregnancy was covered as “personal injury by accident” (as is apparent from XY). Following the 1974 amendment, pregnancy was covered in failed sterilisation cases because “medical misadventure” was defined as being a “personal injury by accident” (XY, Auckland Hospital Board). 
[33]
There was no need to distinguish between compensation for the physical or mental consequences of pregnancy because either or both were covered. Hence, the husband in H v ACC was able to recover for the mental consequences of his failed vasectomy despite the pregnancy having no physical consequences for him.28
| X |Footnote: 28
This was consistent with the approach that “personal injury by accident” was an integrated phrase and once there is a personal injury by accident all the physical and mental consequences of the injury or accident are covered: Green v Matheson [1989] 3 NZLR 564
 
[34]
The Courts were, however, uncomfortable with viewing “pregnancy” as an injury and did not think it was an injury in the ordinary sense. This reflected a view that conception, pregnancy and birth was a natural process: “regeneration of the species” (Jeffries J) and “a God-given ability to conceive and bear a child” (Speight J). 
From 1992 
Statutory test 
[35]
The Accident Rehabilitation and Compensation Insurance Act 1992 (“the 1992 Act”) took a different approach from the 1972 and 1982 Acts. The key differences for present purposes are: 
a)
It separated the cause (eg accident and misadventure) from the injury (which needed to be of certain specified kinds). Cover was provided for29
| X |Footnote: 29
Section 8(1). 
“personal injury” caused by “an accident to the person”,30
| X |Footnote: 30
Section 8(2)(a). 
certain “gradual process, disease or infection” arising in employment,31
| X |Footnote: 31
Section 8(2)(b)). 
“medical misadventure”,32
| X |Footnote: 32
Section 8(2)(c). 
or that was a “consequence of treatment for personal injury”;33
| X |Footnote: 33
Section 8(2)(d). 
 
b)
“Personal injury” was no longer defined in a non-exhaustive way. Instead it was defined as meaning “the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person.”;34
| X |Footnote: 34
Section 4. 
 
c)
In addition “personal injury” was given the “extended” meaning of “personal injury which is mental or nervous shock suffered by a person as an outcome of” an expanded list35
| X |Footnote: 35
Sections 128, 129, 129A, 130 to 135, 138 to 140, 140A, 141, 142, 142A and 201 of the Crimes Act 1961 and s 113 of the Mental Health Act 1969. 
of sexual offences.36
| X |Footnote: 36
Sections 4 and 8(3). 
The 1992 Act no longer expressly provided that pregnancy arising from sexual offences was covered; 
d)
Except where the extended meaning ((c) above) applied, mental injury was excluded unless it was an outcome of physical injuries. 
[36]
The 1992 Act replaced lump sum compensation for “permanent loss or impairment of bodily function” available under the 1972 and 1982 Acts with an independence allowance. To qualify for an independence allowance the person's personal injury needed to have
“resulted in a degree of disability37
| X |Footnote: 37
Disability was defined as meaning ‘any restriction or lack (resulting from impairment) of ability to perform an activity in the manner or within the range considered normal for a person’. Impairment was defined as meaning ‘any loss or abnormality of psychological, physiological, or atomical structure or function’
of 10 percent or more”
.38
| X |Footnote: 38
Section 54 of the 1992 Act. 
Separate lump sum compensation for loss of amenities or capacity for enjoying life and pain and suffering was no longer available. 
[37]
Although set out differently, the Accident Insurance Act 1998 (“the 1998 Act”) was similar to the 1992 Act. Cover was provided39
| X |Footnote: 39
Section 39. 
for “personal injury” caused by accident, medical misadventure, or treatment. Certain gradual process, disease or infections were also covered, as were certain cardio vascular or cerebro-vascular episodes. “[P]ersonal injury” was defined as meaning death,40
| X |Footnote: 40
Section 29(1)(a). 
“[p]hysical injuries suffered by an insured, including for example, a strain or a sprain”,41
| X |Footnote: 41
Section 29(1)(b). 
mental injury suffered because of physical injuries,42
| X |Footnote: 42
Section 29(1)(c). 
or mental injury caused by specified sexual offences.43
| X |Footnote: 43
Slightly expanded but similar to the list of offences from the 1992 Act. 
 
[38]
Although again set out differently from the 1992 and 1998 Acts, the 2001 Act was in similar terms to the 1998 Act.44
| X |Footnote: 44
Because this appeal concerns the 2001 Act, the full text of the relevant sections, as they were first enacted, is set out as an appendix to this judgment. A number of amendments were subsequently made but they are not relevant for present purposes. 
Of particular relevance for present purposes is that personal injury was given the same exhaustive definition as that in the 1998 Act except that damage to dentures or prostheses was added. This meant that to have cover other than for certain specified things (not relevant for present purposes), a person needed to have suffered physical injuries, mental injuries consequent on physical injuries, or mental injuries from certain specified sexual offences. The independence allowance available under the 1992 and 1998 Acts was replaced with lump sum compensation for “permanent impairment”.45
| X |Footnote: 45
Impairment was defined as meaning “a loss, loss of use, or derangement of any body part, organ system or organ function”
 
Cases 
[39]
As was submitted by Mr Corkill, the District Court in this period seems to have followed a consistent line. The beginning of this line seems to have been DK v ARCIC [1995] NZAR 529. This was another case of a failed tubal ligation. The woman terminated her pregnancy and her claim was for emotional and mental anguish only. 
[40]
The District Court (Judge Middleton) accepted the submission for ACC46
| X |Footnote: 46
Then known as the Accident Rehabilitation and Compensation Insurance Corporation. 
that pregnancy was not a physical injury. Further, the termination of the pregnancy, although accepted as being an interference to the body, did not cause physical damage and so was not considered to be a physical injury either. This meant that the mental injury (emotional and mental anguish) was not covered because it was not an outcome of physical injuries as was necessary under the 1992 Act. 
[41]
The submission that pregnancy was not a personal injury was based on the following passage in Blair, Accident Compensation in New Zealand (2nd ed, 1983, Butterworths):47
| X |Footnote: 47
At para 7.4. 
 
“The High Court judgment just referred to [ACC v Auckland Hospital Board and MO [1980] 2 NZLR 748, (1981) 1 NZ ACR 9] indicates that the fact of an unexpected and unwanted pregnancy is not, by itself, evidence of ‘personal injury by accident’. This supports the view expressed by the Appeal Authority in Mrs McR (1979) 1 NZAR 567, and this opinion would appear to be endorsed by Cooke J and some observations in L v M [1979] 2 NZLR 519 at 530. Both of the last-mentioned cases were ‘sterilisation’ ones. Cooke J said that he thought that a pregnancy, however unwanted, could not naturally be described as personal injury but indicated that if there was evidence of some mishap during the operation, this might amount to ‘medical misadventure’. ”
[42]
Judge Middleton took the same view in MM v ARCIC DC ROT, DCA 217/95 12 September 1996,48
| X |Footnote: 48
The Judge said that pregnancy following a sterilisation operation “does not by itself constitute a personal injury”. The Judge also said there was no cover in any event because there was no medical mishap and the cause of the pregnancy was the intervening act of sexual intercourse. 
MT v ARCIC DC ROT, DCA 277/95, 25 September 199649
| X |Footnote: 49
The claimant had an ectopic pregnancy subsequent to a tubal ligation. Judge Middleton declined the claim on the basis that her hospitalisation and continued difficulty in lifting did not meet the “severity” requirement in the legislation to qualify as a medical mishap. 
and in Bell v ARCIC DC WN, DCA 98/96, 22 April 1999 as he did in DK.50
| X |Footnote: 50
Judge Middleton upheld a decision to decline cover stating that “the Court has accepted in a number of cases that an ectopic pregnancy is not a ‘personal injury’ ‘within the meaning of s 4’
Judge Lovell-Smith in Pritchard v ARCIC DC WN, DCA 267/95, 3 October 1996 cited the same passage from Blair in support of her conclusion that it was “well established that pregnancy alone is not personal injury by accident”.51
| X |Footnote: 51
According to a passage in Bell, when the 1992 Act was introduced ACC adopted a policy of declining cover for ectopic pregnancies because sexual intercourse was an intervening cause. 
 

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