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Accident Compensation Cases

J v Accident Compensation Corporation (HC, 18/11/16)

Judgment Text

JUDGMENT OF NATION J 
Nation J
[1]
On 23 April 1998, J underwent a sterilisation operation. It failed because of a mistake. J became pregnant and had a child in early June 2006. 
[2]
J's initial claim for cover for pregnancy was declined by the Accident Compensation Corporation (ACC) on 18 August 2006. On review on 20 December 2007, that decision was quashed. ACC then appealed to the District Court. In light of the then leading authority of the Court of Appeal in Accident Compensation Corporation v D1
| X |Footnote: 1
Accident Compensation Corporation v D [2008] NZCA 576Has Litigation History which is not known to be negative[Blue] 
, ACC's original decision was restored. 
[3]
Following the decision of the Supreme Court in Allenby v H2
| X |Footnote: 2
Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425Has Litigation History which is not known to be negative[Blue] 
, ACC accepted J's renewed claim for cover on 31 August 2012. 
[4]
J was granted cover for her pregnancy. This was for the physical effects of the pregnancy which was treated as ceasing shortly after the birth of her child. She received compensation for a short period, ending not long after the birth of her child. 
[5]
J sought review of the decision to end compensation soon after the birth of her child. On review on 3 September 2013, ACC's original decision was confirmed. J appealed. 
[6]
On 31 July 2015, the District Court allowed J's appeal. The Judge held that J was entitled to compensation for the period after the child was born because, by having to care for her child, she was unable to engage in her pre-injury employment. 
[7]
The Judge gave ACC leave to appeal various questions to the High Court. In essence, the issue on the appeal to the High Court was whether, where pregnancy is considered a personal injury for which there is cover under the Accident Compensation Act 2001 (the Act) (in this instance, because of failed sterilisation), weekly compensation was payable by ACC to a mother who is medically able to work but nevertheless decides to care for a child rather than return to work after a successful pregnancy. 
[8]
In a judgment of 22 July 2016, I concluded that, for J to have a continuing entitlement under the Act, both the birth of the child and the need to look after it had to be part of the personal injury she suffered in becoming pregnant.3
| X |Footnote: 3
Accident Compensation Corporation v J [2016] NZHC 1683Has Litigation History which is not known to be negative[Blue] 
I held the District Court had been incorrect in holding that J was unable, because of her personal injury (the pregnancy), to return to her pre-injury employment. 
[9]
As a result, I quashed the decision of the District Court.4
| X |Footnote: 4
At [75]. 
The effect of this was that ACC's decision, to decline to provide weekly compensation entitlements to J from approximately seven weeks after the birth of her child, was upheld. 
[10]
On 1 August 2016, J filed a notice of application for leave to appeal. ACC filed a notice of opposition. 
[11]
Counsel for both the applicant and respondent have filed submissions and agreed the application should be determined on the papers. 
Jurisdiction to grant the application 
[12]
Leave is governed by s 163 of the Act. Appeals are allowed only with leave of the High Court (or special leave of the Court of Appeal, if leave is declined) and only on a question of law: 
“163
Appeal to Court of Appeal on question of law 
(1)
A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only. 
(2)
If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal. 
(3)
An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court. 
(4)
The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final. ”
[13]
Randerson J set out the principles relevant to a grant of leave under s 163 in Knight v Accident Compensation Corporation:5
| X |Footnote: 5
Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18]. 
 
“The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. That must be treated with this qualification, however, that s 163 is confined to questions of law only and the appeal is to be by way of case stated for the opinion of the Court of Appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. ”
[14]
The Court of Appeal affirmed Randerson J's articulation of the principles in Cullen v Accident Compensation Corporation.6
| X |Footnote: 6
Cullen v Accident Compensation Corporation [2014] NZCA 94Has Litigation History which is not known to be negative[Blue]  at [5]. 
The Court said “The primary focus is on whether the question of law is worthy of consideration”
[15]
On the need for the issue of law to be significant, Williams J in Van Helmand v Accident Compensation Corporation stated:7
| X |Footnote: 7
 
“[13]
… But regard must also be had to wider considerations including the general importance of the questions raised, and whether the interests of justice might be served by allowing the appeal to proceed. Although the classes of consideration are clearly not closed, it will usually be necessary for the prospective appellant that there is an issue of principle at stake, or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success. ”
The proposed appeal 
[16]
In a minute of 4 August 2016, I directed the applicant to file a draft notice of appeal setting out the proposed questions of law which the applicant wished to put before the Court of Appeal. With the submissions, I received a draft notice of appeal setting out the draft grounds of appeal but not the proposed questions of law. The respondent has nevertheless filed submissions in relation to those proposed grounds. 
[17]
It is apparent from the draft notice of appeal and counsel's submission that the applicant wishes to argue on appeal that the High Court's decision was wrong in law in the following respects: 
“(a)
The Court erred in holding that the District Court was wrong to find that the respondent was unable because of her personal injury to return to her pre-injury employment in terms of s 103(2) of the Act (para 74). 
(b)
The Court erred in concluding that the District Court judgment was inconsistent with the scheme of the Act governing entitlement to weekly compensation. 
(c)
The Court erred in concluding that a person is not ‘unable’ to engage in pre-injury employment on grounds other than physical or mental inability. 
(d)
The Court erred in concluding that the Act requires pregnancy as an injury to stop at the birth of the child. 
(e)
The Court erred in its interpretation of the phrase ‘because of … her personal injury’ in s 103(2) of the Act. ”
[18]
I infer from the draft notice and submissions that the questions of law which the applicant wishes to appeal to the Court of Appeal are: 
(a)
Would it be inconsistent with the scheme of the Act governing entitlement to weekly compensation to extend cover to a mother who is entitled to cover for her pregnancy beyond the period when she is suffering the physical effects of the pregnancy? 
(b)
In terms of s 103(2) of the Act, can a person be “unable” to engage in pre-injury employment on grounds other than physical or mental inability? 
(c)
Does the Act require that pregnancy, as an injury, stop at the birth of the child? 
(d)
Should s 103(2) be interpreted so as to allow a claimant to establish an inability to engage in employment because of the consequences of a pregnancy, namely the birth of a child, independent from the physical effects of the pregnancy itself. 
Submissions 
[19]
Mr Beck, for the applicant, has argued that the proposed appeal does relate to questions of law. He submits they must be seriously arguable given the High Court came to conclusions that differed from those reached by the Judge in the District Court. He submitted the District Court and the High Court have adopted different interpretations of the Supreme Court decision in Allenby v H and to the scope of the Accident Compensation Scheme. He argued that the proposed appeal relates to claims at the edges of the Accident Compensation Scheme and involves the broad aims and policies of the legislation. He argued they are the sort of issues that are the proper concern of the Court of Appeal. 
[20]
Mr Beck submits that the case has importance extending beyond this particular case and involves issues that have not previously been considered by the High Court or Court of Appeal. He also submitted the applicant has a substantial private interest in the outcome of the case given the impact her pregnancy and the birth of her child has had on her life. 
[21]
Mr Butler, for the respondent, accepted that the proposed appeal relates to questions of law but contended that the proposed questions are nevertheless not capable of bona fide or serious argument. 
[22]
Mr Butler contended that the judgment of the High Court was balanced and comprehensive and it corrected errors that had been made in the District Court. He said there was no indication in the judgment that the arguments which J would need to pursue on an appeal would have any merit or prospect of success. He submitted that simply contrasting a favourable District Court decision with an unfavourable High Court decision does not demonstrate there are questions of law that are capable of serious argument. 
[23]
Mr Butler submitted there is a need to bring finality and closure to this litigation. He acknowledged that the applicant has a substantial private interest in the outcome of the case and there is also a public interest in the case through other people who could be affected by the High Court decision. However, he submitted that is not reason to grant leave where the decision of the High Court was clearly correct. 
Discussion 
[24]
I accept the proposed appeal does raise questions of law capable of bona fide and serious argument. The High Court was concerned with issues that had not been previously addressed by the High Court. The particular issues which the applicant wishes to put before the Court of Appeal had been carefully considered by the District Court Judge. Given the reasoned way in which he reached his conclusions and the way they contrasted with the conclusions reached in the High Court, I accept that the issues which the applicant wishes to put before the Court of Appeal are bona fide and capable of serious argument. 
[25]
I accept there would be a significant public interest in having the issues considered by the Court of Appeal. As the respondent acknowledges, the judgment of the High Court will affect the claims that others might seek to make under the Act. The judgment could also affect the potential ability of a mother to sue in tort for damages as a result of having to bring up a child which has resulted from a negligent medical act. 
[26]
Consideration of the particular issues by the Court of Appeal may thus assist in reducing or bringing to an end other litigation. 
[27]
I also accept, as does the respondent, that the proposed appeal concerns issues that are of significant interest to the applicant. 
[28]
Accordingly, I grant leave to appeal to the Court of Appeal my judgment of 22 July 2016 on the following questions of law: 
(a)
Would it be inconsistent with the scheme of the Act governing entitlement to weekly compensation to extend cover to a mother who is entitled to cover for her pregnancy beyond the period when she is suffering the physical effects of the pregnancy? 
(b)
In terms of s 103(2) of the Act, can a person be “unable” to engage in pre-injury employment on grounds other than physical or mental inability? 
(c)
Does the Act require that pregnancy, as an injury, stop at the birth of the child? 
(d)
Should s 103(2) be interpreted so as to allow a claimant to establish an inability to engage in employment because of the consequences of a pregnancy, namely the birth of a child, independent from the physical effects of the pregnancy itself. 
[29]
I reserve leave to both parties to file, within 14 days, further memoranda as to the proposed questions of law if either party considers they should be framed in a different way. 
[30]
There will be no order as to costs. 


Accident Compensation Corporation v D [2008] NZCA 576Has Litigation History which is not known to be negative[Blue] 
Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425Has Litigation History which is not known to be negative[Blue] 
Accident Compensation Corporation v J [2016] NZHC 1683Has Litigation History which is not known to be negative[Blue] 
At [75]. 
Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 at [18]. 
Cullen v Accident Compensation Corporation [2014] NZCA 94Has Litigation History which is not known to be negative[Blue]  at [5]. 

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