Accident Compensation Corporation v J

• Jurisdiction: New Zealand
• Judge: Nation J
• Judgment Date: 22 July 2016
• Neutral Citation: [2016] NZHC 1683
• Docket Number: CIV-2015-412-000125
• Court: High Court
• Date: 22 July 2016

Between

Accident Compensation Corporation

Appellant

and

J

Respondent

[2016] NZHC 1683

CIV-2015-412-000125

IN THE HIGH COURT OF NEW ZEALAND

DUNEDIN REGISTRY

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.

Appearances:

A S Butler for the Appellant

P Sara for the Respondent

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 appropriate at some point for the Corporation to consider whether other entitlements, such as childcare, might be available, in order to meet J's needs and/or to facilitate her rehabilitation from her covered injury.

9 Judge Powell gave the Corporation leave to appeal the following questions to the High Court: 6

Was the District Court correct to hold that the respondent is unable, because of her personal injury (the pregnancy), to return to her pre-injury employment in terms of s 103(2) of the Act? Specifically:

• (a) Was the judgment inconsistent with the scheme of the Act governing entitlement to weekly compensation?

• (b) Is a person “unable” to engage in pre-injury employment on grounds other than physical or mental inability?

• (c) Is it correct that there is nothing in the Act that requires pregnancy as an injury to stop at the birth of the child?

• (d) With regard to the phrase “because of … her personal injury” contained in s 103(2) of the Act:

  • (i) Was the fact that the respondent had no physical or mental incapacity immaterial to the question of causation under s 103(2)? and

  • (ii) Was the phrase wide enough to encompass the broader consequences of the respondent's covered injury, namely her obligation to care for her dependent child?

10 As Mr Butler stated:

Expressed in summary form, the issue on appeal is whether, where the pregnancy is considered a personal injury for which there is cover under the Act (here, because of failed sterilisation), weekly compensation is 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.

Submissions for J

11 In submissions for J, Mr Sara supported both the decision and reasoning of the District Court. He noted that the mother in Allenby would have pursued a claim for damages in tort against those responsible for the failed operation but for the Supreme Court's finding that her pregnancy was a personal injury for which she had cover. He said this would also have been the situation with J.

12 J's position remains that her covered personal injury includes the consequences of her pregnancy (a live and dependent child), not just the state of being pregnant.

13 Mr Sara suggested that, in contending cover should cease with the ending of J's hospitalisation, the Corporation appeared to have conflated the s 102(2) requirement for the Corporation to consider medical advice in determining any question under s 103 with the notion that medical advice must then determine the eligibility for weekly...