Accident Compensation Corporation v Calver as Trustee of The Estate of Deanna Trevarthen

• Jurisdiction: New Zealand
• Judge: Brown J
• Judgment Date: 27 May 2021
• Neutral Citation: [2021] NZCA 211
• Court: Court of Appeal
• Docket Number: CA592/2019
• Date: 27 May 2021

Between

Accident Compensation Corporation

Appellant

and

Angela Christine Calver as Trustee of The Estate of Deanna Trevarthen

Respondent

[2021] NZCA 211

Court:

Brown, Clifford and Gilbert JJ

CA592/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Statutory Interpretation, Accident Compensation — appeal against a High Court decision which held that non work-related asbestos exposure was a personal injury which had cover under the Accident Compensation Act 2001 — definition of “personal injury” — whether a personal injury has to be a tangible harm to the body

Counsel:

P J Radich QC and L I van Dam for Appellant

B H Woodhouse and T W R Lynskey for Respondent

• A The appeal is dismissed.

• B We answer the question of law submitted for determination by this Court:

  Does mesothelioma, not caused by work-related exposure to asbestos, amount to a “personal injury” under s 26 of the Act?

  Yes.

• C The appellant must pay the respondent costs for a standard appeal on a band A basis plus usual disbursements. We certify for second counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Brown J)

Introduction

1 Mesothelioma is a fatal cancer caused by exposure to asbestos. Persons suffering from mesothelioma caused by work-related asbestos exposure have cover under the Accident Compensation Act 2001 (the 2001 Act).

2 Deanna Trevarthen died from the disease at the age of 45. She maintained that her mesothelioma arose from contact as a young girl with her father whose occupation as an electrician likely involved high exposure to asbestos. Prior to her death, the Accident Compensation Corporation (ACC) declined her claim, reasoning that for cover to be available for mesothelioma it must arise as a result of work exposure. ACC's decision was upheld on review and by the District Court. 1 However Mallon J allowed the appeal in the High Court and held that Ms Trevarthen was entitled to cover under the 2001 Act because her mesothelioma was a personal injury caused by an accident to her. 2

3 ACC has appealed to this Court. The question of law for determination is: 3

Does mesothelioma, not caused by a work-related exposure to asbestos, amount to a “personal injury” under s 26 of the Act?

Statutory framework

4 Part 2 of the 2001 Act determines whether a person has cover under the Act. As Blanchard J proposed in Allenby v H, the best starting point is the definition of personal injury in s 26(1). 4 Relevant to this appeal it provides:

Personal injury means—

• (a) the death of a person; or

• (b) physical injuries suffered by a person, including, for example, a strain or a sprain; …

  …

5 Of particular focus in this appeal is the exclusion from the personal injury definition found in s 26(2):

Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h).

6 This leads back to s 20. Subsection (1) lists the three prerequisites for cover for personal injury (except mental injury caused by certain criminal acts):

A person has cover for a personal injury if—

• (a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and

• (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and

• (c) the personal injury is described in any of the paragraphs in subsection (2).

7 The personal injuries described in s 20(2) are:

• (a) personal injury caused by an accident to the person:

• (b) personal injury that is treatment injury suffered by the person:

• (c) treatment injury in circumstances described in section 32(7):

• (d) personal injury that is a consequence of treatment given to the person for another personal injury for which the person has cover:

• (e) personal injury caused by a work-related gradual process, disease, or infection suffered by the person:

• (f) personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person:

• (g) personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover:

• (h) personal injury caused by a gradual process, disease, or infection consequential on treatment given to the person for personal injury for which the person has cover:

• (i) personal injury that is a cardiovascular or cerebrovascular episode that is treatment injury suffered by the person:

• (j) personal injury that is a cardiovascular or cerebrovascular episode that is personal injury suffered by the person to which section 28(3) applies.

8 In Allenby, noting that ss 20 and 26 each refers to the other, 5 Blanchard J discussed the relationship in this way:

[59] Cover under s 20 is therefore available only if, first, the claimant has suffered a personal injury and, second, that injury was caused in one of the specified ways. As the language used in s 20 indicates, in referring to the “kinds” of injury “described” in other sections, the application of the Act depends on judgment of likeness by reference to described categories. In addition, the cumulative elements of the definition indicate that the “kinds of injury” described in the paragraphs of s 26 are controlled by the requirement that the injury be “described” in s 20(2).

His Honour further observed that: 6

… the use of the term “personal injury” in para (f), and indeed throughout subs (2), in connection with events that would naturally be described as illnesses rather than injuries, showed that, despite s 26(1)(b), the term is being given an extended meaning.

9 The phrase “personal injury caused by a work-related gradual process, disease, or infection” in s 20(2)(e) is defined in s 30:

(1) Personal injury caused by a work-related gradual process, disease, or infection means a personal injury—

• (a) suffered by a person; and

• (b) caused by a gradual process, disease, or infection; and

• (c) caused in the circumstances described in subsection (2).

(2) The circumstances are—

• (a) the person—

  • (i) performs an employment task that has a particular property or characteristic; or

  • (ii) is employed in an environment that has a particular property or characteristic; and

• (b) the particular property or characteristic—

  • (i) causes, or contributes to the cause of, the personal injury; and

  • (ii) is not found to any material extent in the non-employment activities or environment of the person; and

  • (iii) may or may not be present throughout the whole of the person's employment; and

• (c) the risk of suffering the personal injury—

  • (i) is significantly greater for persons who perform the employment task than for persons who do not perform it; or

  • (ii) is significantly greater for persons who are employed in that type of environment than for persons who are not.

…

Schedule 2 of the Act specifies a list of occupational diseases in respect of which s 30 further provides:

(3) Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is—

• (a) of a type described in Schedule 2; and

• (b) suffered by a person who is or has been in employment—

  • (i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or

  • (ii) in an occupation, industry, or process described in that schedule in relation to that type of personal injury.

…

(4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c).

Schedule 2 includes “[l]ung cancer or mesothelioma as caused by asbestos”. 7 Hence it is common ground that the 2001 Act provides cover for mesothelioma if it is work-related.

10 Although the Judge's conclusion, that Ms Trevarthen's mesothelioma was a personal injury caused by accident, is not an issue on this appeal, we note that the definition of accident in s 25(1) includes the following kinds of occurrences:

• (a) a specific event or a series of events, other than a gradual process, that—

  • (i) involves the application of a force (including gravity), or resistance, external to the human body; or

  • (ii) involves the sudden movement of the body to avoid a force (including gravity), or resistance, external to the body; or

  • (iii) involves a twisting movement of the body;

• (b) the inhalation of any solid, liquid, gas, or foreign object on a specific occasion, which kind of occurrence does not include the inhalation of a virus, bacterium, protozoan, or fungus, unless that inhalation is the result of the criminal act of a person other than the injured person:

  …

Relevant background

11 Ms Trevarthen began to feel unwell in the middle of 2015, having a persistent cough and suffering from chest pain, shortness of breath and weight loss. After an initial diagnosis of bronchitis, following a chest x-ray, a CT scan and a biopsy she was diagnosed with malignant mesothelioma on 28 October 2015.

12 In early December 2015 Ms Trevarthen made an application to ACC for funding. As the Mallon J explained: 8

Ms Trevarthen advised that her father was an electrician and, on many occasions when she was between the ages of four and 10, she would play at his work sites. This would include breaking particle boards and pipes while playing at the sites. She would also hug him every day when he got home from work in his work clothes.

Ms Trevarthen's medical advice was that, given the timeframe for developing mesothelioma from when asbestos was inhaled, it was more than highly probable that she had contracted mesothelioma from asbestos in that manner.

13 Ms Trevarthen's claim for cover was declined by ACC on 11 January 2016 for the reason that, because of its...