Accident Compensation Corporation v J - [2016] NZHC 1683

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ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF THE RESPONDENT.

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000125 [2016] NZHC 1683

BETWEEN
ACCIDENT COMPENSATION

CORPORATION Appellant

AND

J Respondent

Hearing: 5 April 2016

Appearances:

A S Butler for the Appellant
P Sara for the Respondent

Judgment:

22 July 2016

JUDGMENT OF NATION J

The issue

[1] A young woman, J, became pregnant following a failed sterilisation. The Accident Compensation Corporation (the Corporation) accepted she was entitled to cover under the Accident Compensation Act 2001 (the Act) for her pregnancy as personal injury in terms of the legislation.1 On this appeal, the issue is whether she is entitled to claim weekly loss of earnings compensation for having to stay at home
to care for her child.

1 The Act was originally enacted as the Injury Prevention, Rehabilitation, and Compensation Act
2001. Its name changed to the Accident Compensation Act 2001 as from 3 March 2010.

ACCIDENT COMPENSATION CORPORATION v J [2016] NZHC 1683 [22 July 2016]

Background

[2] This was succinctly summarised in submissions from Mr Butler, counsel for the appellant:

3.1    The relevant factual background to the case is simple. On 23 April
1998, J underwent a sterilisation operation.   On 6 April 2006, J
became aware that she was pregnant. J’s child was born in early June
2006.   It transpires that the sterilisation operation failed because filshie clips which should have been attached to the fallopian tube
were instead attached to the bladder wall reflection.

3.2J’s original claim for cover for the pregnancy following the failed sterilisation was declined by ACC on 18 August 2006. That decision was quashed on review on 20 December 2007. ACC’s appeal was upheld in the District Court, in light of the then leading authority of the Court of Appeal in ACC v D, such that ACC’s original decision was restored. However, following the decision of the Supreme Court in Allenby v H, on 31 August 2012, ACC accepted J’s renewed claim for cover.

3.3J was granted cover for her pregnancy. To expand, this is the period which begins with conception, and includes the physiological impacts of pregnancy, can include the physical or mental effects of the pregnancy and ceases when those physical or mental effects cease to operate (usually shortly after the birth of the child). In J’s case, she was granted cover for the physical effects but not the mental effects of her pregnancy.

3.4ACC determined that J was entitled to weekly compensation for the period 15 May 2006 to 27 July 2006, and paid her backdated weekly compensation for that period. J was considered to be entitled to weekly compensation for that period because she was unable to work, because of her pregnancy, during that time. J sought review of the decision to end compensation on 27 July 2006, which was dismissed on 3 September 2013. J appealed.

3.5On 31 July 2015, the District…

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: [2016] NZHC 1683
Decision Date: 22 July 2016

CaseChat Overview and Summary

This appeal was between the Accident Compensation Corporation (ACC) and a young woman, J, who became pregnant following a failed sterilisation operation. The appeal concerned whether J was entitled to claim weekly loss of earnings compensation for having to stay at home to care for her child. The issue was whether the birth of the child and the need to look after it had to be part of the personal injury suffered by J in becoming pregnant. The appeal raised four questions: (a) was the judgment inconsistent with the scheme of the Act governing entitlement to weekly compensation? (b) is a person “unable” to engage in pre-injury employment on grounds other than physical or mental inability? (c) is it correct that there is nothing in the Act that requires pregnancy as an injury to stop at the birth of the child? and (d) with regard to the phrase “because of … her personal injury” contained in s 103(2) of the Act, (i) was the fact that the respondent had no physical or mental incapacity immaterial to the question of causation under s 103(2)? and (ii) was the phrase wide enough to encompass the broader consequences of the respondent’s covered injury, namely her obligation to care for her dependent child?

The High Court held that the District Court was in error in deciding that J was entitled to continuing loss of earnings compensation through having to bring up a child. The High Court considered that such entitlement was not within the scope of the accident compensation scheme as provided for in the Act. Nor was it consistent with the basis on which the Court of Appeal and Supreme Court have held that pregnancy resulting from a failed sterilisation can amount to personal injury in terms of the Act. The High Court concluded that whether entitlement should be extended in this way is not for the courts to decide. The extension cannot be justified simply as being consistent with an expansive interpretation of the term “personal injury”. Whether or not the scheme should be extended to provide such cover is a matter for Parliament.

Orders