Accident Compensation Corporation v J

JurisdictionNew Zealand
CourtHigh Court
JudgeNation J
Judgment Date22 July 2016
Neutral Citation[2016] NZHC 1683
Docket NumberCIV-2015-412-000125

[2016] NZHC 1683

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

CIV-2015-412-000125

Between
Accident Compensation Corporation
Appellant
and
J
Respondent
Appearances:

A S Butler for the Appellant

P Sara for the Respondent

Appeal by the Accident Compensation Corporation (“ACC”) against a District Court which held that the respondent was entitled to weekly compensation because she was unable to work while she cared for her dependent child. — the respondent had become pregnant following a failed sterilisation — ACC had accepted the respondent was entitled to cover under the Accident Compensation Act 2001 (“ACA”) for her pregnancy as personal injury in terms of the ACA — whether the respondent was entitled to claim weekly loss of earnings compensation for having to stay at home to care for her child — whether there was nothing in the ACA that required pregnancy as an injury to stop at the birth of the child — whether the fact that the respondent had no physical or mental incapacity was immaterial to the question of causation under s103(2) ACA — whether the phrase “because of … her personal injury” contained in s103(2) ACA was wide enough to encompass the broader consequences of the respondent's covered injury, namely her obligation to care for her dependent child.

Held: The ACA limited the cover which was available and it was personal injury which generated entitlement. There could be no entitlement where a personal injury was no longer affecting a claimant. It was the physical effects of the pregnancy on the claimant that were covered, nothing more. Following the birth of her child, because J's pregnancy was no longer operative, she could no longer have any entitlements to compensation from it. Applying and interpreting the ACA in the context of its purpose outlined in s3ACA (providing for a fair and sustainable scheme for managing personal injury minimising the overall incidence and impact of injury in the community (including economic, social, and personal costs) it was difficult to see how the economic costs of bringing up a child fitted within the concept of personal injury, even with that term being applied in an expansive way.

Section 103 ACA suggested that entitlements depend on incapacitation resulting from the covered personal injury. Continuing entitlement to earnings-related compensation depended on an assessment of the physical or mental consequences of the injury for which there was cover. It was inconsistent with the ACA and the availability of entitlements to suggest that entitlements should respond to the non-injury-related aspects of a covered personal injury.

“Unable”, as used in s103(2) ACA was to be interpreted in the context in which it was used with due regard to the purpose of the ACA and should be given its plain meaning. Once a mother had recovered physically from her pregnancy and giving birth to her child, she would not be “unable” to work because of her pregnancy.

The DC had erred in deciding that J was entitled to continuing loss of earnings compensation through having to bring up a child. For J to have a continuing entitlement under the ACA, both 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. To reach such a conclusion would be inconsistent with the scheme of the ACA its relevant provisions and the basis on which the Supreme Court found pregnancy could constitute an injury for which there would be cover under the ACA.

The fact that J had no physical or mental incapacity was not immaterial to the question of causation under s103(2) ACA. The phrase “because of … her personal injury” contained in s103(2) ACA was not wide enough to encompass the broader consequences of the respondent's covered injury, namely her obligation to care for her dependent child.

Appeal allowed. The decision of the DC was quashed.

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.

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. 3.2 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 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. 3.3 J 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. 3.4 ACC 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. 3.5 On 31 July 2015, the District Court allowed J's appeal, quashed the review decision of 3 September 2013, and set aside ACC's decision dated 28 March 2013.
The District Court judgment
3

Judge Powell considered the starting point for his analysis was the Supreme Court decision in Allenby v H. 2 He said this had changed the legal landscape in determining that cover was available under the Act for the physical consequences of pregnancy, such that J was entitled to cover. He held that J's eligibility for weekly

compensation after she had been discharged from medical services after her child was born was to be determined through consideration of s 103(2):

103 Corporation to determine incapacity of claimant who, at time of personal injury, was earner or on unpaid parental leave

(2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury.

4

Considering s 103(2), Judge Powell considered the question to be determined was whether J's obligation to look after her dependent child once he was born rendered J unable, because of her personal injury, to engage in her pre-injury employment.

5

Judge Powell noted that in Allenby the Supreme Court had stated the expression “personal injury”, in the Act, was to be used in an expansive way. 3 He acknowledged that the types of entitlements that might flow from pregnancy as a covered personal injury were not discussed but referred to a statement in the majority judgment when they stated there could be cover for the consequences of pregnancy. 4

6

He considered the words “because of… her personal injury”, as used in s 103(2), were wide enough to encompass the broader consequences of the covered injury, namely J's obligation to care for her child. He said this interpretation was appropriate given he was required to apply a “generous and unniggardly approach” in the interpretation of the Act. 5

7

He considered the wording of s 103(2) did not require that J have an ongoing physical incapacity or injury. He rejected the submission that J's inability to return to work was a result of her own choice regarding parenting and/or childcare rather than incapacity. He considered she had little real choice given that, as a result of her treatment injury, she had a dependent child and a responsibility to look after that

child. He considered the difference between J's situation and another (hypothetical) mother who had to deal with the consequences of an unwanted pregnancy was that J had cover because her pregnancy resulted from an event for which she had cover under the Act. He was not concerned that continuing entitlement under the accident compensation regime would mean that those eligible to entitlements would be treated differently to those who were not covered. He said this was no different from the situation where someone would be entitled to continuing compensation for particular traumatic injuries while a person who suffered the same disability as a result of degenerative process would not be entitled to cover. The availability of state benefits for those who fell outside the accident compensation system was not a basis for refusing to provide J weekly compensation in respect of her covered injury.
8

Judge Powell held that J was accordingly entitled to weekly compensation because she was unable to work while she cared for her dependent child. He also noted that, although J had not applied for any other entitlements at that stage, it might be...

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