J v Accident Compensation Corporation - [2017] NZCA 441

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NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION, OR IDENTIFYING PARTICULARS OF APPELLANT REMAINS IN FORCE.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA616/2016 [2017] NZCA 441

BETWEEN
J

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 14 June 2017

Court:

Kós P, Cooper and Asher JJ

Counsel:

A C Beck for Appellant
A S Butler and M W McMenamin for Respondent

Judgment:

9 October 2017 at 9.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

B There is no order for costs.

REASONS

Cooper and Asher JJ [1] Kós P (dissenting) [50]

J v ACCIDENT COMPENSATION CORPORATION [2017] NZCA 441 [9 October 2017]

COOPER AND ASHER JJ

(Given by Asher J)

[1] This case concerns the limits to the entitlements provided by the Accident Compensation Act 2001 (the Act). The appellant, Ms J, became pregnant following a failed sterilisation. There has been no question in these proceedings about cover under the Act for her pregnancy, childbirth and physical recovery from childbirth. The Accident Compensation Corporation (ACC) has however refused Ms J’s claim for weekly loss of earnings compensation for having to stay at home after her recovery to care for her child. It takes the position that entitlements end when the physical consequences of childbirth to the mind and body are fully healed. The question in this appeal is whether that refusal by ACC was correct.

[2] We record that the practical reality of the situation is that the issue is not a choice between government support for Ms J or no support at all. Ms J has indeed been receiving weekly compensation from Work and Income New Zealand (WINZ) as a solo mother. However, as is often the case when issues of ACC coverage arise, if she qualifies for loss of earnings compensation under the Act, that compensation will be considerably greater than that which is available from WINZ.

Background

[3] We set out the background facts, which are uncontroversial, drawing them from the summary in the High Court judgment.1

[4] On 23 April 1998, Ms J underwent a sterilisation operation. That sterilisation operation failed because clips that should have been attached to the fallopian tube were instead attached to the bladder wall reflection. On 6 April 2006, Ms J became aware that she was pregnant. Her child was born in early June 2006.

[5] Ms J’s original claim for cover for the pregnancy following the failed

sterilisation was declined by ACC on 18 August 2006. That decision was quashed

1 Accident Compensation Corporation v J [2016] NZHC 1683 at [2]. This summary was recorded as being taken from the submissions of counsel for ACC.

on review on 20 December 2007. ACC’s appeal was upheld in the District Court,2 in light of the then leading authority of the Court of Appeal in Accident Compensation Corporation v D, and ACC’s original decision was restored.3 However, following the decision of the Supreme Court in

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: [2017] NZCA 441
Decision Date: 9 October 2017 at 9.30 am

CaseChat Overview and Summary

In this appeal, the appellant, Ms J, sought a review of the respondent’s decision to refuse her claim for weekly loss of earnings compensation for having to stay at home after her recovery to care for her child, born following a failed sterilisation procedure. The Court of Appeal dismissed Ms J’s appeal and held that the refusal by the Accident Compensation Corporation was correct. The appeal was dismissed as it was held that it was inconsistent with the scheme of the Accident Compensation Act 2001 to extend cover to a mother who is entitled to cover for her pregnancy beyond the period when she is suffering the physical effects of the pregnancy. The Court of Appeal considered the legislative history of the Act and held that the Act was concerned with the physical and mental effects of personal injury on the claimant. The Court also considered the common law position and held that the uncertain outcome of any claim Ms J could have at common law was not sufficient to support her claim for weekly loss of earnings compensation. The Court emphasised that the cover created by the Act did not extend to loss of earnings compensation when a healthy mother is bringing up a child.

Orders