J v Accident Compensation Corporation - [2016] NZHC 2769

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

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000125 [2016] NZHC 2769

BETWEEN
J

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: On the papers

Counsel:

P Sara & A Beck for the Applicant
A S Butler for the Respondent

Judgment:

18 November 2016

JUDGMENT OF NATION J

[1] On 23 April 1998, J underwent a sterilisation operation. It failed because of a mistake. J became pregnant and had a child in early June 2006.

[2] J’s initial claim for cover for pregnancy was declined by the Accident

Compensation Corporation (ACC) on 18 August 2006. On review on 20 December

2007, that decision was quashed. ACC then appealed to the District Court. In light of the then leading authority of the Court of Appeal in Accident Compensation Corporation v D1, ACC’s original decision was restored.

[3] Following the decision of the Supreme Court in Allenby v H2, ACC accepted

J’s renewed claim for cover on 31 August 2012.

1 Accident Compensation Corporation v D [2008] NZCA 576.
2 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.

[4] J was granted cover for her pregnancy. This was for the physical effects of the pregnancy which was treated as ceasing shortly after the birth of her child. She received compensation for a short period, ending not long after the birth of her child.

[5] J sought review of the decision to end compensation soon after the birth of her child. On review on 3 September 2013, ACC’s original decision was confirmed. J appealed.

[6] On 31 July 2015, the District Court allowed J’s appeal. The Judge held that J was entitled to compensation for the period after the child was born because, by having to care for her child, she was unable to engage in her pre-injury employment.

[7] The Judge gave ACC leave to appeal various questions to the High Court. In essence, the issue on the appeal to the High Court was whether, where pregnancy is considered a personal injury for which there is cover under the Accident Compensation Act 2001 (the Act) (in this instance, because of failed sterilisation), weekly compensation was payable by ACC to a mother who is medically able to work but nevertheless decides to care for a child rather than return to work after a successful pregnancy.

[8] In a judgment of 22 July 2016, I concluded that, for J to have a continuing entitlement under the Act, both the birth of the child and the need to look after it had to be part of the personal injury she suffered in becoming pregnant.3 I held the District Court had been incorrect in holding that J was unable, because of her personal injury (the pregnancy), to return to her pre-injury employment.

[9] As a result, I quashed the decision of the District Court.4 The effect of this was that ACC’s decision, to decline to provide…

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 2769
Decision Date: 18 November 2016

CaseChat Overview and Summary

The applicant, J, sought leave to appeal from the High Court to the Court of Appeal in relation to a decision that she was not entitled to weekly compensation from the Accident Compensation Corporation (ACC) beyond a certain point following the birth of her child. J's pregnancy resulted from a failed sterilisation operation, which she had undergone in 1998. The appeal was to be on questions of law only. The primary focus was on whether the question of law was worthy of consideration and whether the interests of justice were served by allowing the appeal to proceed. The appeal concerned the interpretation of the Accident Compensation Act 2001 and whether the Act required pregnancy, as an injury, to stop at the birth of the child. The court found that the proposed appeal did raise questions of law capable of bona fide and serious argument. The particular issues had been carefully considered by the District Court Judge, and the High Court had come to conclusions that differed from those reached by the Judge in the District Court. The issues which the applicant wished to put before the Court of Appeal were bona fide and capable of serious argument. The appeal concerned issues that were of significant interest to the applicant and the broader public interest. The court granted leave to appeal on the following questions of law: (a) Would it be inconsistent with the scheme of the Act governing entitlement to weekly compensation 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? (b) In terms of s 103(2) of the Act, can a person be "unable" to engage in pre-injury employment on grounds other than physical or mental inability? (c) Does the Act require that pregnancy, as an injury, stop at the birth of the child? (d) Should s 103(2) be interpreted so as to allow a claimant to establish an inability to engage in employment because of the consequences of a pregnancy, namely the birth of a child, independent from the physical effects of the pregnancy itself. The parties were given leave to file, within 14 days, further memoranda as to the proposed questions of law if either party considered they should be framed in a different way. There was no order as to costs.

Orders