C v Accident Compensation Corporation

• Jurisdiction: New Zealand
• Judge: Stevens
• Judgment Date: 02 December 2013
• Neutral Citation: [2013] NZCA 590
• Docket Number: CA314/2011
• Court: Court of Appeal
• Date: 02 December 2013

BETWEEN

C

Appellant

and

Accident Compensation Corporation

Respondent

and

Medical Protection Society Ltd

Intervener

[2013] NZCA 590

Court:

Randerson, Stevens and French JJ

CA314/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from High Court decision delivered prior to Supreme Court decision in 2012 of Allenby v H in relation to cover under the Accident Compensation Act 2001 (“ACA”) — appellant fell pregnant in 2006 and at her 20 week scan in early 2007 she was advised that no anatomical abnormality was detected — at birth the baby was found to have spina bifida — appellant said she would have sought to terminate the pregnancy if this condition had been diagnosed at the scan as it should have been — in Allenby it was held that a pregnancy arising after a failed sterilisation was a personal injury under the ACA — whether a woman whose child was born with spina bifida, following a failure to detect that condition during an antenatal ultrasound scan, had suffered a personal injury under the ACA.

Counsel:

P G Schmidt for Appellant

B A Corkill QC and J G Roberts for Respondent A H Waalkens QC and C L Garvey for Intervener

• A The appeal is allowed.

• B The question posed in the case stated, namely:

  Has the appellant suffered a personal injury under the Accident Compensation Act 2001?

  is answered provisionally in the affirmative.

• C The case is referred back to the District Court for the hearing of further evidence in accordance with the principles set out in this judgment.

• D Order prohibiting publication of the names or identifying particulars of the appellant, her child or any of the health professionals involved in the treatment of the appellant and her child.

• E The respondent is to pay the appellant costs for a standard appeal on a Band A basis and usual disbursements.

• F There is no order for costs in favour of the intervener.

• G This case may be cited as Cumberland v Accident Compensation Corporation.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

	Para No
Introduction …	[1]
Background …	[7]
High Court decision …	[13]
Relevant legislation …	[17]
The Allenby judgments …	[21]
Discussion …	[32]
Section 20(1)(b)…	[34]
Section 20(1)(c) …	[39]
Scope of appellant's claim …	[58]
Referral back to the District Court? …	[61]
Result and orders …	[65]

Introduction

1 The issue in this appeal is whether a woman whose child is born with spina bifida, following a failure to detect that condition during an antenatal ultrasound scan, has suffered a personal injury under the Accident Compensation Act 2001 (the Act).

2 The appellant, Ms C, 1 fell pregnant in September 2006. In January 2007, she underwent the usual 20 week scan under the direction of a sonographer and a radiologist. The appellant was advised that no anatomical abnormality was detected. The baby was born in May 2007. At birth the baby was found to have spina bifida. The appellant says that if this condition had been diagnosed at the scan, as it should have been, she would have sought to terminate the pregnancy.

3 The appellant applied to the Accident Compensation Corporation (the Corporation) for cover under the Act in September 2007. An initial decision to decline cover was reversed on review and cover was granted on 26 August 2008. The Corporation appealed to the District Court. Judge Beattie decided that the appellant was not entitled to cover under the Act. 2 Leave was granted to the appellant to appeal to the High Court. 3

4 The High Court appeal addressed the following questions of law:

[Is] the appellant entitled to cover for the continuation of her pregnancy past 20 weeks for the remainder of her pregnancy?

[Has] the appellant … suffered personal injury in the form of a developing lesion within herself which, had it been identified, could have been treated?

5 Faire J concluded that the answer to these questions was “no”. 4 However, the Judge granted leave to appeal to this Court by way of case stated, posing the following question: 5

Has the [appellant] suffered a personal injury under the Accident Compensation Act 2001?

6 For the reasons given below, we conclude that the question must be provisionally answered in the affirmative. The provisional nature of our judgment arises from the need for further evidence on an aspect of causation.

Background

7 The relevant background facts were set out in Judge Beattie's decision and repeated in the High Court judgment. 6 All parties have indicated their acceptance of this factual narrative:

• • In or about September 2006, the [appellant] was diagnosed as being pregnant, that pregnancy being confirmed by tests carried out by her GP on 9 September 2006.

• • The [appellant] engaged the services of a midwife to oversee her pregnancy.

• • An ultrasound scan at 12 weeks was indicated as being normal.

• • On 4 January 2007, the [appellant] underwent a 20-week ultrasound scan …. That ultrasound scan was carried out under the oversight and direction of [a] Sonographer, and [a] Radiologist.

• • In a written report dated 4 January 2007, [the scan provider] advised as follows:

  “No anatomical abnormality detected.

  Size is consistent with dates. EDD above is confirmed.

  She has seen the baby and has a recording of the scan with her.”

• • The EDD was stated as being 24 May 2007.

• • [The baby] was born on 21 May 2007.

• • At birth [the baby] was found to have spina bifida, there being herniation of the spinal cord and membranes. She underwent remedial surgery on 22 May 2007.

• • In a letter dated 23 May 2007, [the Chief Radiologist employed by the scan provider] issued a written apology to the [appellant] for their failure to diagnose the spina bifida from that 20-week scan.

• • Subsequent independent specialist opinion would indicate that the signs were there to be seen in that scan but were simply overlooked.

• • On 14 September 2007, the [appellant] made application to the Corporation for cover for a treatment injury said to be her continued pregnancy and of the fact that the incorrect advice from that 20-week scan deprived her of the opportunity of not continuing with that pregnancy.

• • The Corporation issued its decision declining cover on 21 November 2007, it contending that the [appellant's] claim did not meet the criteria for a treatment injury.

• • On 18 December 2007, the Corporation received an application for review of the decision declining cover, such application being made through the office of Mr Schmidt, Barrister and Solicitor.

• • By decision dated 29 May 2008, the Corporation acknowledged that it had not made a primary decision on cover within the statutory time- frame of two months provided for in Section 57 of the Act, and that therefore it acknowledged that Ms [C] had a deemed decision of cover.

• • By further decision, also dated 29 May 2008, the Corporation advised that it had revised the deemed cover decision issued on that date and that a fresh decision had been made to revise that decision by again declining to grant cover for her claim for a treatment injury.

• • The [appellant] thereupon filed her applications for review in respect of those two decisions.

• • At the review hearing, which took place on two dates, namely 7 July 2008 and concluding on 15 August 2008, the Reviewer had three applications for review to consider. Firstly, the original decision of 21 November 2007 to decline cover, secondly the deeming decision granting cover, and then the decision revising that decision and again declining cover, both dated 29 May 2008.

• • In her decision dated 26 August 2008, the Reviewer declined jurisdiction to consider the first two review applications on the grounds that events had overtaken them, but that in respect of the Corporation's decision of 29 May 2008, to again decline cover for a treatment injury, the Reviewer elected to follow the High Court decision of Justice Mallon in the appeal of ACC v D, and held that Ms [C]'s pregnancy was a personal injury under the 2001 Act, and as such Ms [C] was entitled to cover for that continued pregnancy as a personal injury. The Corporation's decision of 29 May 2008 was therefore quashed and substituted by the review decision granting cover to Ms [C] for a treatment injury.

8 In terms of the 20 week ultrasound scan carried out on the appellant, the undisputed background is as follows. Maternity services are generally provided free within New Zealand to all who are eligible for publicly funded healthcare. These services include access to a lead maternity carer and to screening tests if desired. Participation in screening is a matter of choice for the pregnant woman.

9 An obstetric ultrasound scan may be carried out at various times during pregnancy depending on the perceived clinical need, and information sought to be obtained. An anatomy scan in the second trimester is typically performed just prior to 20 weeks gestation. The information obtainable from the ultrasound includes the age of the foetus and confirmation of the estimated delivery date; the position of the placenta; the amount of fluid around the foetus; and observation of the key foetal structures including for the purpose of diagnosing abnormalities. According to counsel, the scan procedure is usually timed at between 18–20 weeks to preserve the availability of a termination.

10 The medical reasons for a pregnant woman seeking such a scan are explained in a Royal Australian and New Zealand College of Radiologists publication “Inside Radiology” cited by Mr Waalkens QC for the intervener. 7 This scan is part of the routine care during pregnancy. Of importance is the fact that its...