Wrongful Birth or Wrongful Law: A critical analysis of the availability of child-rearing costs after failed sterilisation operations in New Zealand
| Author | Briana Walley |
| Position | LLB(hons)/BA University of Canterbury 2017, Graduate Solicitor at Russell McVeagh |
| Pages | 1-33 |
1
(iv)
* LLB(hons)/BA University of C anterbury 2017, Graduate Solicitor at Russell McVeagh.
WRONGFUL BIRTH OR WRONGFUL LAW:
A CRITICAL ANALYSIS OF THE AVAILABILITY OF
CHILD-REA RING COSTS AFTER FAILED STERILISATION
OPERATIONS IN NEW ZEALAND
B W*
A
is article explores the availability of child-rearing costs after failed
sterilisation operations in New Zealand. It is divided into three main
sections. First, how the accident compensation scheme has dealt with the
issue thus far. is article discusses how New Zealand case law and the
Accident Compensation Act 2001 provides inadequate cover for parents.
Second, this article discusses how New Zealand courts should respond to a
common law claim for child-rearing costs. is involves an analysis of the
law in the United Kingdom and Australia. is article argues that, while
allowing full child-rearing costs is the preferred option, the common law in
general is not the ideal place for failed sterilisation cases to be determined.
Finally, this article concludes that New Zealand should utilise and expand
its pre-existing accident compensation scheme to encompass claims for child-
rearing costs following failed sterilisation operations.
I. I
e English Court of Appeal once stated that:1
… a healthy baby is so lovely a creature that I can well u nderstand
the reaction of one who asks: how could its birth possibly give
rise to an action for damages?
However, when a person has undergone a sterilisation operation, the birth
of a child is exactly what they were trying to avoid. When this operation
2 Canterbury Law R eview [Vol 24, 2018]
goes wrong, and a child is born, it is reasonable that a pa rent would want to
recover the associated costs. is is known as the tort of wrongfu l birth.
In New Zealand, the starting point for a potential wrongfu l birth claim,
is the Accident Compensation Scheme (“ACC”). e Accident Compensation
Act 2001 (“ACA”) provides comprehensive insurance cover for personal
injuries that fall under its scope, whilst simultaneously removing the right
to sue for compensatory damages in relation to that injury. It then provides
entitlements based on the available cover. Controversy exists at the margins
of cover, where it is unclear whether the personal injury is covered by ACC or
whether the right to sue remains available. e Woodhouse Principles2 have
guided judicial interpretation of ACA to ensure that cas es on the margins fall
on the correct side of the line. Wrongful birth is the epitome of a case on the
margins.
It has been established in New Zea land that pregnancy following a
failed sterilisation operation is a personal injury under ACC.3 It has also
been established that there are no entitlements available for loss of earning
capacity following a failed sterilisation under ACC.4 However, given that
cover is provided for the personal injury, a claimant is potentially barred from
bringing a common law claim for child-rearing costs. is is problematic as
it creates a legal black hole whereby a claimant can neither claim under ACC
nor at the common law for the loss they have sustained. is article explores
the lega l black hole in the litig ation surrounding J v ACC and why the courts
have held that there are no entitlements to loss of earning capacity under ACC
in failed sterilisation ca ses.5 In particular, this article explains how J v ACC
has closed the door to a common law claim in da mages and why the current
legal framework surrounding failed sterilisation cases is unsatisfactory.
is article then disc usses how failed sterilis ation cases would be determined
under the common law. ere are three options arising from international
case law that New Zea land could take: denying child-rearing costs,6 a llowing
child-rearing costs,7 or rewarding a lump sum for loss of autonomy.8 ese
options will be discussed in turn. e positions in the United Kingdom
and Australia will be compared in order to show that allowing recovery for
2 Namely: community re sponsibility, comprehensive entitlement, complete
rehabilitation, real compens ation, and administ rative eciency. Compensation
for Personal Injury in New Zealand: Report of the Royal Commi ssion of Inquiry
(Government Printer, Wellington, 1967) [Woodhouse Report].
3 Allenby v H [2012] NZSC 33.
4 J v ACC [2017] NZCA 441.
5 Ibid.
6 is is the position tak en in the United Kingdom, Canada and t he United States
(in some cases). See McFarlane v Tayside Health Board [2009] 2 AC 59; [1999]
4 ALL ER 961 (UK); Cataford v Moreau (1978) 114 DLR (3d) 585 (Canada);
Szekeres v Robinson 715 P 2d 1076 (Nev 1986) (USA).
7 is is the option favoured by the Hig h Court of Austra lia. See Catt nach v
Melchior [2003] HCA 38.
8 Rees v Darlington Mem orial Hospital NHS Trust [2004] 1 AC 309.
Wrongful Bir th or Wrongf ul Law: A critical analysis of the availability of 3
child-rearing costs af ter failed sterilisation operations in New Zeal and
child-rearing costs is the most appropriate and justied common law option.
is article wil l then conclude that, nevertheless, the common law is not
the optimal place for failed sterilisation cases to be determined. e policy
decisions involved should be left to policy makers.
is article then arg ues that expanding ACC to provide full compensation
for the consequences of failed sterilisation operations is the best approach for
New Zealand. A n expansion would include the ability to claim for the cost of
pregnancy and raising the subsequent child. is nal option is the preferred
option as it provides proper compensation for parents, protection for doctors,
and is consistent with the original a ims of ACC to be a comprehensive no-
fault scheme. It is argued that New Zea land should utilise and expand its
pre-existing accident compensation scheme so that parents ca n recover for the
full and fai r cost of raising a child born due to a failed sterilisation operation.
II. W B A C
A
A. e Litigation in J v ACC
J was a single woman with no family and limited nancial resources. She
decided that she did not want children. In 1998, J therefore underwent a
sterilisation operation. However, despite the sterilis ation, she became pregnant
and in June 2006 J gave birth to a child. A s it turned out, the doctor who
had performed her operation had been negligent and J was not made sterile. J
made a claim to ACC for the pregnancy and loss of earning capacity that she
suered as a result of this unwa nted child.
J was granted ACC cover for the physical eects of the pregnancy.9 ACC
also granted J weekly compensation for the period that she was unable to
work due to the pregnancy. is was a period of just over 2 months. J sought
a review of this decision, which was dismissed. She appealed to the District
Court on the basis that under ss 100(1)(a) and 103(2) of the ACA, she was
entitled to weekly compensation for on-going lost earnings resulting f rom her
pregnancy and childbirt h. e question for the District Court was whether
J was incapable “because of her personal injury to engage in employment in
which she was employed when she suered the personal injury”.10
Judge Powell quashed the decision of the reviewer and held that Ms J
was entitled to weekly compensation under s 103(2) of the ACA.11 Focusing
on statutory interpretation, he found that the words “because of … her
personal injury” were wide enough to encompass the broad consequences of
9 is was af ter the Supreme Court judgement in Allenby, above n 3.
10 Accident Compensation Act 20 01, s 103(2).
11 J v ACC, above n 4, at [16].
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