Allenby v H - [2011] NZCA 251

IN THE COURT OF APPEAL OF NEW ZEALAND

CA586/2010
[2011] NZCA 251

BETWEEN KEITH ALLENBY
Appellant

AND H
First Respondent

AND MIDDLEMORE HOSPITAL OF COUNTIES MANUKAU DISTRICT HEALTH BOARD
Second Respondent

AND ACCIDENT COMPENSATION CORPORATION
Interested Party

Court: Glazebrook, Arnold and Ellen France JJ

Counsel: A H Waalkens QC for Appellant
J M Miller for First Respondent
P N White for Second Respondent
B A Corkill QC for Accident Compensation Corporation

Judgment: 3 June 2011 at 10 am

(on the papers)

JUDGMENT OF THE COURT

A The answer to the question stated is that the first respondent’s pregnancy is not covered as personal injury caused by medical misadventure under the Accident Compensation Act 2001. The appeal is accordingly dismissed.
BCosts are reserved.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

Ms H , the first respondent, has filed proceedings seeking damages against Dr Allenby, the appellant, and the Counties Manukau District Health Board, the second respondent, following a failed sterilisation operation. In the High Court an order was made by consent that a question be determined prior to trial. The High Court also made an order referring the question directly to this Court under s 64 of the Judicature Act 1908. The question raised is one that was determined by this Court in Accident Compensation Corporation v D (ACC v D).[1]

Background

[1] Accident Compensation Corporation v D [2008] NZCA 576, [2008] NZAR 679.

The question removed by the High Court to this Court is as follows:
Is the [first respondent’s] pregnancy and/or the caesarean section she had to deliver her [child], said to have arisen as a consequence of the negligence of the [appellant and second respondent] (details of which are contained in the [first respondent]’s statement of claim filed in this proceeding) covered as personal injury caused by medical misadventure pursuant to the provisions of Section 20(2)(b) (prior to its amendment on 1 July 2005) of the Accident Compensation Act 2001?
This Court in ACC v D, considered that question (although phrased in slightly different terms). By a majority, the Court concluded that pregnancy is not a “physical injury” and therefore not a “personal injury” under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (now, the Accident Compensation Act 2001). The effect of the decision, on an appeal from a decision of the Accident Compensation Corporation declining cover, was that pregnancy following a failed sterilisation was not covered as a personal injury caused by medical misadventure under the accident compensation legislation.
We understand that, like Ms H , D, the unsuccessful applicant for cover in ACC v D, has since brought a claim for damages. We are advised that there is at least one other set of High Court proceedings which raise the same issue.

This appeal

Against this background, the appellant and the second respondent submit that this Court should reconsider its earlier decision in ACC v D. Counsel for the appellant and the second respondent both say that…

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.

Continue reading Allenby v H

Details

AGLC: Allenby v H [2011] NZCA 251
Case: [2011] NZCA 251
Decision Date: 3 June 2011

CaseChat Overview and Summary

This appeal concerns the issue of whether a pregnancy that resulted from a failed sterilisation procedure is covered as personal injury under the Accident Compensation Act 2001. The appellant, Keith Allenby, a doctor, and the second respondent, the Counties Manukau District Health Board, argue that the first respondent's pregnancy and subsequent delivery are covered as personal injury caused by medical misadventure. The first respondent, Ms H, seeks damages for the failed sterilisation operation and the subsequent pregnancy and delivery. This Court was required to determine whether the first respondent's pregnancy and delivery were covered as personal injury caused by medical misadventure under the Accident Compensation Act 2001.

This Court considered the arguments put forward by the appellant and the second respondent to reconsider the earlier decision in Accident Compensation Corporation v D. The appellant and the second respondent submitted that this Court should reconsider its earlier decision in ACC v D, as the decision creates a "social and economic incongruity" by leaving plaintiffs like the first respondent having to bring common law claims for damages and gives rise to inconsistencies. However, this Court concluded that this is not an appropriate case for the Court to reconsider its earlier decision. The majority in ACC v D saw the question to be resolved in the case as a fairly finely balanced matter of statutory interpretation and one where positions taken by both parties gave rise to some inconsistencies. There is no evidence of changes in social attitudes or practices and limited criticism of the decision, and so nothing to suggest it is so plainly wrong as to justify reconsideration of such a recent decision. The Court declined to revisit ACC v D and answered the question stated in the negative.

The effect of the decision is that the first respondent's pregnancy and delivery are not covered as personal injury caused by medical misadventure under the Accident Compensation Act 2001. The appeal is accordingly dismissed, and costs are reserved. This decision provides clarity on the issue of whether a pregnancy that results from a failed sterilisation procedure is covered as personal injury under the Accident Compensation Act 2001, and it is likely to have implications for future cases involving similar issues.

Orders