Cumberland v Accident Compensation Corporation - [2013] NZCA 590

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ORDER PROHIBITING PUBLICATION OF THE NAMES OR IDENTIFYING PARTICULARS OF THE APPELLANT, HER CHILD OR ANY OF THE HEALTH PROFESSIONALS INVOLVED IN THE TREATMENT OF THE APPELLANT AND HER CHILD.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA314/2011 [2013] NZCA 590

BETWEEN
C

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

AND

MEDICAL PROTECTION SOCIETY LTD

Intervener

Hearing: 29 October 2013

Court:

Randerson, Stevens and French JJ

Counsel:

P G Schmidt for Appellant
B A Corkill QC and J G Roberts for Respondent
A H Waalkens QC and C L Garvey for Intervener

Judgment:

2 December 2013 at 3.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The question posed in the case stated, namely:

Has the appellant suffered a personal injury under the
Accident Compensation Act 2001?

is answered provisionally in the affirmative.

C V ACCIDENT COMPENSATION CORPORATION CA314/2011 [2013] NZCA 590 [2 December 2013]

CThe case is referred back to the District Court for the hearing of further evidence in accordance with the principles set out in this judgment.

DOrder prohibiting publication of the names or identifying particulars of the appellant, her child or any of the health professionals involved in the treatment of the appellant and her child.

E The respondent is to pay the appellant costs for a standard appeal on a

Band A basis and usual disbursements.

F There is no order for costs in favour of the intervener.

G This case may be cited as Cumberland v Accident Compensation

Corporation.

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction [1] Background [7] High Court decision [13] Relevant legislation [17] The Allenby judgments [21] Discussion [32] Section 20(1)(b) [34] Section 20(1)(c) [39] Scope of appellant’s claim [58] Referral back to the District Court? [61] Result and orders [65]

Introduction

[1] The issue in this appeal is whether a woman whose child is born with spina bifida, following a failure to detect that condition during an antenatal ultrasound scan, has suffered a personal injury under the Accident Compensation Act 2001 (the Act).

[2] The appellant, Ms C,1 fell pregnant in September 2006. In January 2007, she underwent the usual 20 week scan under the direction of a sonographer and a radiologist. The appellant was advised that no anatomical abnormality was detected. The baby was born in May 2007. At birth the baby was found to have spina bifida. The appellant says that if this condition had been diagnosed at the scan, as it should have been, she would have sought to terminate the pregnancy.

[3] The appellant applied to the Accident Compensation Corporation (the Corporation) for cover under the Act in September 2007. An initial decision to decline cover was reversed on review and cover was granted on 26 August 2008. The Corporation appealed to the District Court. Judge Beattie decided that the appellant was not entitled to cover under the Act.2 Leave was granted to the

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: [2013] NZCA 590
Decision Date: 2 December 2013 at 3.00 pm

CaseChat Overview and Summary

In this case, the New Zealand Court of Appeal considered whether a woman who was misdiagnosed during a pregnancy scan, which led to the birth of a child with spina bifida, had suffered a personal injury under the Accident Compensation Act 2001. The appellant, Ms C, argued that if the condition had been correctly diagnosed, she would have sought a termination of her pregnancy. The appeal was allowed, and the question of whether Ms C had suffered a personal injury under the Act was answered provisionally in the affirmative. The case was referred back to the District Court for further evidence regarding the appellant's eligibility for a termination, as it was unclear whether she would have been able to obtain one. The Court also made an order prohibiting the publication of the names or identifying particulars of the appellant, her child, or any of the health professionals involved in the treatment of the appellant and her child. The respondent was ordered to pay the appellant costs for a standard appeal on a Band A basis and usual disbursements, with no order for costs in favour of the intervener.

Orders