Calver v Accident Compensation Corporation

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 08 July 2019
• Neutral Citation: [2019] NZHC 1581
• Court: High Court
• Docket Number: CIV 2018-485-951
• Date: 08 July 2019

Under the Accident Compensation Act 2001

In The Matter Of an application under section 162 of the Act to appeal to the High Court on questions of law

Between

Angela Christine Calver as Executrix and Trustee of the Estate of Trevarthen

Appellant

and

Accident Compensation Corporation

Respondent

[2019] NZHC 1581

CIV 2018-485-951

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Accident Compensation — claim for cover by estate of deceased — claimant had sought cover for mesothelioma (cancer caused by exposure to asbestos) arising from contact with her father — definition of “personal injury” — Accident Compensation Act 2001

Appeal under s162 Accident Compensation Act 2001 (“the Act”) (appeal to High Court on question of law) against a District Court (“DC”) judgment which upheld a decision of the Accident Compensation Corporation (“ACC”) to decline cover to Trevarthen (“T”) for mesothelioma (cancer caused by exposure to asbestos) on the grounds it was a gradual process condition and needed to be the result of work exposure for there to be cover. T had died in December 2016, she had contended that her mesothelioma had arisen from contact with her father (between 1975 and 1981) who had worked as an electrician an occupation which at that time had high exposure to asbestos. Before she died she had sought cover under the Accident Compensation Act 2001 (the Act). ACC's decision to decline cover was upheld by the Reviewer and by the DC on appeal although their reasons differed. The claim of “accident” before ACC, the Reviewer, and the DC was advanced under s25(1)(b) which required “the inhalation of any solid … or foreign object on a specific occasion …”. That was rejected on the basis it had not been shown that the total asbestos fibres that gave rise to the disease were inhaled on one occasion. A “specific occasion” was equated with a single occasion. The Reviewer also relied on Stok v Accident Compensation Corporation [1995] NZAR 396 which held that mesothelioma, if caused by asbestos inhalation, met the statutory definition of “personal injury” in s26(1) and was not caused wholly or substantially by a gradual process, disease or infection under s26(2). However, the Reviewer considered T had not shown she had contracted mesothelioma because she had inhaled asbestos. Rather, she had shown a risk that she was exposed to asbestos inhalation.

The issues were: whether mesothelioma, not caused by a work-related exposure to asbestos, amounted to a “personal injury” under s26 (personal injury) and whether s25(1)(b) required the claimant to prove that the personal injury was “caused by” the inhalation of asbestos on “a specific occasion”.

The Court held Stok had been correctly decided. Section 2 of the 1982 Act defined “personal injury” as including “the physical and mental consequences of any such injury or of the accident”. It excluded damage to the body caused exclusively by disease.

The legislative history did not show that Stok was wrongly decided or that the subsequent legislation was intended to exclude cover for mesothelioma suffered by someone exposed to asbestos fibres outside the workplace. That did not mean all diseases were covered. They still needed to come within s20(2). Idiopathic diseases (those that developed from an unknown cause, and that were not consequential on covered events) remained outside the scope of the Act. Cover for that could arise under s26(2)(e) as a personal injury under s26(1) which was not personal injury under s26(2); or as personal injury under s26(1) which was also a personal injury under s26(2). A number of occupational diseases were expressly within s20(2)(e) by their inclusion in Schedule 2. Mesothelioma was one of those. Mesothelioma was a personal injury under s26(1) and s26(2) (gradual process, disease, or infection unless it is personal injury of a kind described in s20(2)(e) to (h)) did not apply.

An accident under s25(1)(b) was established. T's mesothelioma was a personal injury caused by an accident to her. The personal injury was mesothelioma. It was a personal injury because of its physical impacts on the body. T's mesothelioma was caused by an accident because it was caused by inhalation on a specific occasion. A specific occasion occurred at the time at which there was a sufficient dose of asbestos fibres inhaled to (later) trigger the disease. The specific occasion may have been from exposure at one time (in which case that one time was the “specific occasion”). If there was exposure at several times, then the specific occasion was the occasion on which the last amount of fibres that constitutes the necessary dosage to trigger the disease was inhaled.

The Act in force at the time she suffered the injury was the Accident Compensation Act1972 Act. By 1974 the Accident Compensation Act had been amended to cover “personal injury by accident” and that was defined in the same way as the 1982 Act considered in Stok. T would have had cover under the Act in force at the time of exposure.

The appeal was allowed. The DC's decision was set aside. T was entitled to cover under the Accident Compensation Act 2001.

Counsel:

B H Woodhouse and T W R Lynskey for Appellant

P J Radich QC and L I van Dam

JUDGMENT OF Mallon J

Table of contents

Introduction	[1]
The law	[7]
The evidence	[14]
The review	[28]
The District Court	[31]
Cover pursuant to s 20(2)(a)?	[32]
The basis for cover	[32]
Stok	[35]
Was Stok wrongly decided?	[49]
Does the Stok analysis hold under the new legislation?	[53]
Was mesothelioma caused by an accident under s 25(1)(b)?	[80]
Accident under s 25(1)(a)?	[108]
Conclusion on cover under s 20(2)(a)	[111]
Cover pursuant to s 20(2)(g)	[114]
A new argument	[114]
The basis for cover	[116]
Does the initial inhalation cause an injury	[117]
When was the personal injury sustained?	[134]
Second injury consequential on the first injury	[137]
Conclusion on cover under s 20(2)(g)	[138]
Result	[139]

Introduction

1 Deanna Trevarthen died on 5 December 2016 aged 45. Her death was caused by mesothelioma, which is a fatal cancer caused by exposure to asbestos. It can arise in individuals with relatively low exposure to asbestos. A small but significant group of New Zealanders contract it each year. It differs from asbestosis (a fibrotic lung disease) which develops from a high asbestos fibre concentration in the lungs resulting from inhaling very high doses of asbestos fibres. 1

2 Ms Trevarthen contended her mesothelioma arose from contact with her father when she was a young girl. Her father worked as an electrician, an occupation which at that time had high exposure to asbestos. When she was between the ages of four and 10 she would hug her father when he was wearing his work clothes and she would also sometime play at his work sites.

3 Before she died she sought cover under the Accident Compensation Act 2001 (the Act). Acceptance of cover would have given her a range of entitlements: for example, treatment costs, weekly compensation, a lump sum, and funeral expenses. Her claim for cover is continued by her estate.

4 The Accident Compensation Corporation (ACC) declined cover. ACC's position was that mesothelioma was a gradual process condition and, as such, needed to be the result of work exposure for there to be cover. ACC's decision was upheld by the Reviewer and by the District Court on appeal although their reasons differed. 2 The District Court granted leave to appeal to this Court. 3

5 The questions of law on which leave to appeal was granted were formulated by agreement between the parties and were as follows:

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

• (b) Did the District Court Judge err by failing to apply s 25(1)(b) of the Act?

• (c) Does, in the circumstances in which ACC accepts it is more likely than not that a claimant inhaled asbestos, s 20(2)(a) and s 25(1)(b) of the Act require the claimant to prove that the personal injury was “caused by” the inhalation of asbestos on “a specific occasion”?

6 Ms Trevarthen's estate no longer pursues question (b). 4 For the reasons that follow, I have found that the answers to questions (a) and (c) are yes. In answering these questions I have concluded that Ms Trevarthen's mesothelioma is a personal injury by accident and as such Ms Trevarthen was entitled to cover under the Act.

The law

7 A person has cover under the Act if he or she can establish: 5

• (a) a “personal injury” as defined by s 26(1);

• (b) the personal injury was suffered in New Zealand on or after 1 April 2002 (or cover is available through the transitional provisions); and

• (c) the personal injury is of a kind for which the Act provides cover.

8 Section 26 defines a personal injury as follows:

26 Personal injury

(1) 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; or

• (c) mental injury suffered by a person because of physical injuries suffered by the person; or

• (d) mental injury suffered by a person in the circumstances described in section 21; or

• (da) work-related mental injury that is suffered by a person in the circumstances described in section 21B; or

• (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.

…

(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).

…

9 For present purposes, of relevance under s 26(1) is that a personal injury includes physical...