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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 |
| AND | ANGELA CHRISTINE CALVER AS TRUSTEE OF THE ESTATE OF DEANNA TREVARTHEN |
| Hearing: | 25 November 2020 |
Court: | Brown, Clifford and Gilbert JJ |
Counsel: | P J Radich QC and L I van Dam for Appellant |
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…
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- [2021] NZCA 211
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