Accident Compensation Corporation v Calver - [2021] NZCA 211

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA592/2019
[2021] NZCA 211

BETWEEN	ACCIDENT COMPENSATION CORPORATION Appellant
AND	ANGELA CHRISTINE CALVER AS TRUSTEE OF THE ESTATE OF DEANNA TREVARTHEN Respondent

Hearing:	25 November 2020
Court:	Brown, Clifford and Gilbert JJ
Counsel:	P J Radich QC and L I van Dam for Appellant B H Woodhouse and T W R Lynskey for Respondent
Judgment:	27 May 2021 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B We answer the question of law submitted for determination by this Court:

Does mesothelioma, not caused by work-related exposure to asbestos, amount to a “personal injury” under s 26 of the Act?
Yes.

CThe appellant must pay the respondent costs for a standard appeal on a band A basis plus usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Mesothelioma is a fatal cancer caused by exposure to asbestos. Persons suffering from mesothelioma caused by work-related asbestos exposure have cover under the Accident Compensation Act 2001 (the 2001 Act).
Deanna Trevarthen died from the disease at the age of 45. She maintained that her mesothelioma arose from contact as a young girl with her father whose occupation as an electrician likely involved high exposure to asbestos. Prior to her death, the Accident Compensation Corporation (ACC) declined her claim, reasoning that for cover to be available for mesothelioma it must arise as a result of work exposure. ACC’s decision was upheld on review and by the District Court.[1] However Mallon J allowed the appeal in the High Court and held that Ms Trevarthen was entitled to cover under the 2001 Act because her mesothelioma was a personal injury caused by an accident to her.[2]
[1]Calver v Accident Compensation Corporation [2018] NZACC 60 [District Court judgment].
[2]Calver v Accident Compensation Corporation [2019] NZHC 1581 [High Court judgment].
ACC has appealed to this Court. The question of law for determination is:[3]
Does mesothelioma, not caused by a work-related exposure to asbestos, amount to a “personal injury” under s 26 of the Act?

Statutory framework

[3]Leave to appeal was granted by the High Court: Accident Compensation Corporation v Calver [2019] NZHC 2667.

Part 2 of the 2001 Act determines whether a person has cover under the Act. As Blanchard J proposed in Allenby v H, the best starting point is the definition of personal injury in s 26(1).[4] Relevant to this appeal it provides:
Personal injury means—
(a) the death of a person; or
(b)physical injuries suffered by a person, including, for example, a strain or a sprain; …
…
[4]Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 at [56].
Of particular focus in this appeal is the exclusion from the personal injury definition found in s 26(2):
Personal injury does not include personal injury caused wholly or substantially by a gradual…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZCA 211
Decision Date: 27 May 2021 at 10.30 am

CaseChat Overview and Summary

This case involved an appeal by the Accident Compensation Corporation (ACC) against the decision of the High Court that mesothelioma, not caused by work-related exposure to asbestos, amounted to a “personal injury” under s 26 of the Accident Compensation Act 2001 (the Act). The appeal was dismissed. The Court held that the statutory definition of “personal injury” should be interpreted expansively and that mesothelioma is a personal injury caused by an accident, in this case the inhalation of asbestos fibres, and not a disease caused wholly or substantially by a gradual process. The Court rejected ACC’s argument that the disease itself, not the inhalation of asbestos fibres, was the cause of the personal injury. The Court held that the physical manifestations of mesothelioma, not caused by work-related exposure to asbestos, can amount to a “personal injury” under s 26 of the Act.

Orders