Allenby v H

• Jurisdiction: New Zealand
• Judge: Elias Cj,Blanchard,McGrath,William Young JJ,Blanchard J,Tipping J
• Judgment Date: 09 May 2012
• Neutral Citation: [2012] NZSC 33
• Docket Number: SC 70/2011
• Court: Supreme Court
• Date: 09 May 2012

Between

Keith Allenby

Appellant

and

H

First Respondent

and

Middlemore Hospital of Counties Manukau District Health Board

Second Respondent

and

Accident Compensation Corporation

Interested Party

[2012] NZSC 33

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 70/2011

IN THE SUPREME COURT OF NEW ZEALAND

Appeal from Court of Appeal decision that pregnancy was not a “personal injury” under the Injury Prevention, Rehabilitation and Compensation Act 2001 (“IPRCA 2001”) — H had undergone a sterilisation operation that failed — H gave birth to a child as a result — H could only seek damages under common law if she was not covered by the IPRCA 2001 — the surgeon and District Health Board maintained that H was covered by the IPRCA 2001 but the Accident Compensation Corporation maintained H was not — whether impregnation and the developing physiological impacts of pregnancy were properly treated as “personal injury” within the meaning of s26 IPRCA 2001.

Counsel:

A H Waalkens QC and C L Garvey for Appellant

J M Miller and M Dao for First Respondent

P N White and B P Mills for Second Respondent

D B Collins QC Solicitor-General, B A Corkill QC and S L Scott for Accident Compensation Corporation

F Geiringer for Intervener, Doctors for Sexual Abuse Care

JUDGMENT OF THE COURT

A The appeal is allowed. The question framed in the High Court is answered “yes”.

B Costs are reserved.

REASONS

	Para No
Elias CJ	[1]
Blanchard, McGrath and William Young JJ	[32]
Tipping J	[85]

Elias Cj

1 The question raised by the appeal is whether a woman who becomes pregnant following a failed sterilisation has suffered personal injury caused by medical misadventure, for which she will have cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

2 I have had the advantage of reading in draft the reasons given by Blanchard J and Tipping J. I agree with their conclusion that the first respondent suffered personal injury through medical misadventure when she became pregnant following the failed sterilisation. I am in agreement and have little to add to the essential point on which the appeal turns: whether impregnation and the developing physiological impacts of pregnancy are properly treated as “personal injury” within the meaning of s 26 of the Act. I write separately to indicate why I think cover is available on that basis under s 20(2) of the Act and to reserve my position on some points which are not essential to the result.

3 The legislative history described by Blanchard J is consistent with the interpretation reached as to the meaning of s 26. I do not think that the views expressed by Cooke J under earlier legislation in L v M (that pregnancy cannot amount to a “personal injury”), 1 which have proved influential in subsequent cases (as discussed by Blanchard J at [43] to [48]), are helpful when considering whether pregnancy may amount to a “personal injury” under the 2001 Act. I prefer not to join in the views expressed by Blanchard J and Tipping J about further circumstances in which pregnancy may be covered when it arises by accident. In particular, I have

considerable reservations about whether consent is a helpful concept when assessing whether there is cover for personal injury caused by accident. These are not matters I think it necessary to consider in the present case

The appeal

4 The first respondent suffered mental illness after becoming pregnant following a sterilisation procedure carried out by the appellant, a medical practitioner. 2 She brought civil proceedings in tort against the appellant in the High Court. The appellant applied to strike out the proceedings as being precluded by the Injury Prevention, Rehabilitation, and Compensation Act 2001, as they are if there is cover under the Act. Because the Court of Appeal had held in a decision in 2008 ( Accident Compensation Corporation v D) that pregnancy is not “personal injury” within the meaning of the Act, 3 in a case that was not appealed further, the High Court removed the application into the Court of Appeal which granted a formal judgment adhering to its earlier determination, 4 in order to allow leave to appeal to be sought in this Court. 5

5 The appellant argues that the first respondent has cover and that the decision of the Court of Appeal in Accident Corporation v D is wrong. The first respondent is neutral as to whether her remedy is through cover under the Act or through her civil action. But the Accident Compensation Corporation, appearing as an interested party, argues that the Court of Appeal's determination in the Accident Corporation v D is right and should be confirmed, which would result in the appeal being dismissed and the civil proceedings continuing.

6 If impregnation is not a personal injury within the meaning of the Act, there is no cover both for physical injury and any resulting mental injury (for which under the Act there is cover only if it is “suffered by a person because of physical injuries

suffered by the person” 6). If so, unless a claimant falls within a specific statutory provision which permits cover for mental injury consequential on specified crimes, 7 including rape, she will have no cover for the adverse mental consequences which are not uncommon in the case of unlooked-for pregnancies

The legislative background

7 The Injury Prevention, Rehabilitation, and Compensation Act 2001 provides cover on the basis of line-drawing which reflects policy choices. Such line-drawing has resulted in legislation which is technical. Approaches taken to the interpretation of provisions under earlier accident compensation legislation need to be treated with some caution in considering the current legislation. Nor is this easy legislation to follow. It contains much cross-referencing, repetition, and circularity in expression.

8 It is accepted that, before enactment of the Accident Rehabilitation and Compensation Insurance Act 1992, the first respondent would have received cover. That is because “personal injury by accident” was defined from 1974 to include any “medical misadventure”. 8 In addition, it is clear that a woman who became pregnant following a sexual assault would have cover because pregnancy was specifically identified as “actual bodily harm” arising out of a sexual crime. 9 Whether outside medical misadventure or criminal acts pregnancy could amount to “personal injury by accident” was doubted in dissent in the Court of Appeal by Cooke J in L v M but was a matter never finally resolved before the legislation was changed. 10 Indeed, the 1972 Act, unlike the 2001 Act, left “personal injury” undefined.

9 Nothing in the legislative history indicates that any change was intended in relation to cover for pregnancy resulting from medical misadventure or a sexual crime when the new legislation was enacted in 1992. It might have been expected that, if cover was withdrawn for pregnancy in those two situations, some explicit

acknowledgement of the change would have occurred in the legislative processes. The new legislation was preceded by a report of the Law Commission in 1988 11 and a report of a ministerial working party in 1991, 12 neither of which indicated any proposal to change the then existing cover for pregnancy. There is no mention of dropping such cover in the Hansard reports of the debates on the Bill. (Although one submission received by the Select Committee raised concerns that the cover for rape might have been removed in the Bill, there is no response to it.)

10 It seems from the report of the ministerial working party and a report of the Minister of Labour 13 that reform in 1992 was prompted in part by concern that cover for injuries arising from accidents had been extended by an expansive interpretation of “accident” in judicial and administrative decisions. The new Act therefore defined “accident” by reference to “a specific event or series of events” involving “the application of a force or resistance external to the human body … but does not include a gradual process”. 14 Nor did “accident” include treatment given by a registered health professional, so that it is made clear that “medical misadventure” cannot amount to “an accident”. 15 In addition, the new legislation removed the equation of “personal injury by accident” with “medical misadventure”. Accordingly, “personal injury caused by medical misadventure” is now defined in the 2001 Act by s 32 as “personal injury that is suffered by the person seeking or receiving treatment given by or at the direction of a registered health professional”. 16

11 The Corporation argues that the restructuring and re-expression of the legislation in 1992, which has been carried through into the 2001 Act, means that pregnancy has not been covered since 1992 either for medical misadventure or rape because pregnancy is not within the definition of “personal injury” (contained in s 26 of the Act) which is now necessary for the cover provided by s 20. We were advised by the Solicitor-General that the Corporation considers it is not therefore required to

provide cover for pregnancy following rape, but will pay for the costs of a termination if the woman is eligible for it. His submission was that this is because there is cover for “personal injury that is a mental injury” (“a clinically significant behavioural, cognitive, or psychological dysfunction”) caused by specified criminal acts under s 21 (including sexual violation), irrespective of whether the pregnancy itself is covered, and that a termination can be covered as “treatment” for that mental injury

“Medical misadventure”

12 Medical misadventure arises out of medical error or medical mishap. 17 Medical mishap (an adverse consequence of treatment 18) is not...