1. family and parenting
2. motherhood
3. pregnancy

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.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA314/2011
[2013] NZCA 590
BETWEEN
C
Appellant
AND
ACCIDENT COMPENSATION
CORPORATION
Respondent
AND
MEDICAL PROTECTION SOCIETY
LTD
Intervener
Hearing:
29 October 2013
Court:
Randerson, Stevens and French JJ
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
Judgment:
2 December 2013 at 3.00 pm
JUDGMENT OF THE COURT
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 V ACCIDENT COMPENSATION CORPORATION CA314/2011 [2013] NZCA 590 [2 December 2013]
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.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
Introduction
Background
High Court decision
Relevant legislation
The Allenby judgments
Discussion
Section 20(1)(b)
Section 20(1)(c)
Scope of appellant’s claim
Referral back to the District Court?
Result and orders
[1]
[7]
[13]
[17]
[21]
[32]
[34]
[39]
[58]
[61]
[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?
1
2
3
4
5
On 27 February 2013 White J made an order suppressing the names of the appellant and her
child: C v Accident Compensation Corporation [2013] NZCA 36. There is no dispute that the
names of the health professionals involved should also be suppressed. As the Medical Protection
Society indemnifies the two health professionals who carried out and read the scan, this Court
granted leave to the Medical Protection Society to intervene: C v Accident Compensation
Corporation [2013] NZCA 34.
Accident Compensation Corporation v [C] DC Auckland 145/2009, 27 August 2009.
[C] v Accident Compensation Corporation DC Auckland 145/2010, 31 August 2010. Leave was
also given on a third question, relating to a deemed decision under s 58 of the Act, but that
question is of no relevance to this appeal.
C v Accident Compensation Corporation HC Auckland CIV-2010-404-6195, 24 March 2011
[High Court judgment].
C v Accident Compensation Corporation HC Auckland CIV-2010-404-6195, 3 May 2011 and 23
May 2011. Leave to appeal was granted pursuant to s 163 of 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.”
6
•
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.
High Court judgment at [3].
•
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 timeframe 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 purpose is to
identify the presence of a “major structural abnormality”.
If abnormalities are
detected the relevant medical professionals will talk to the woman’s doctor about the
possible reasons for the abnormalities. The publication explains that: “this will help
to guide the discussion between you and your doctor about any further investigation
or treatment that might be needed”. The publication also warns that it is important
that the woman discuss the results with the referring doctor so that their implications
can be understood by her.
[11]
To this narrative we add that a claim was filed with the Corporation on behalf
of the baby in respect of the physical injuries said to have arisen from the spina
bifida lesion that developed at around five weeks while the baby was in utero. The
Corporation granted cover for an intracranial haemorrhage that occurred at the time
7
Monica Pahuja “18–20 week
<www.insideradiology.com.au>.
screening
pregnancy
ultrasound”
Inside
Radiology
of birth. That decision was not in issue before us. A further claim for cover in
respect of myelomeningocele, hydrocephalus and Chiari 2 malformation (all related
to the spina bifida condition) was declined by the Corporation. An application for
review was dismissed by a Reviewer. We were told that the baby’s claim is currently
under appeal to the District Court.
[12]
The legal context to this appeal is informed by the following chronology of
developments:
•
On 22 December 2008 this Court reversed the decision of
Mallon J in Accident Compensation Corporation v D8 and
concluded pregnancy was not a “personal injury” for the
purposes of the Act.9
•
On 27 August 2009 Judge Beattie issued his judgment in
relation to the appellant’s claim concluding that, following
Accident Compensation Corporation v D, the appellant was not
entitled to cover.10
•
On 24 March 2011 Faire J delivered his judgment (summarised
below).11
•
On 9 May 2012 the Supreme Court decision in Allenby v H was
delivered.12 This decision held that pregnancy arising after a
failed sterilisation was personal injury under the Act.
High Court decision
[13]
The advent of the decision of the Supreme Court in Allenby has expanded the
arguments available to the appellant. The judgments in Allenby were, of course, not
available to Faire J. For that reason we need only make brief reference to the High
Court judgment.
8
9
10
11
12
Accident Compensation Corporation v D [2007] NZAR 679 (HC).
Accident Compensation Corporation v D [2008] NZCA 576.
Accident Compensation Corporation v [C], above n 2.
High Court judgment, above n 4.
Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.
[14]
The appellant first argued that the relevant personal injury was the
continuation of the pregnancy after the date of the misdiagnosis. However Faire J,
as he was bound to do, applied this Court’s decision in Accident Compensation
Corporation v D13 to the effect that pregnancy was not a “personal injury” within the
meaning of the Act. Thus the first argument could not succeed.
[15]
The appellant advanced a second argument to the effect that the relevant
personal injury was the continued worsening of the lesion on the foetus after the date
of the misdiagnosis. Faire J held that there was an arguable foundation for the view
that the development of the lesion constituted a relevant personal injury. However
the Judge found that this injury could not properly be said to be an injury “suffered
by” the appellant.14
[16]
For these reasons, Faire J answered both questions of law posed in the
negative.
Relevant legislation
[17]
We set out the salient provisions of the legislation as it stood at the relevant
time. Section 20 of the Act sets out the circumstances in which a person has cover
for a personal injury:
20
Cover for personal injury suffered in New Zealand (except
mental injury caused by certain criminal acts)
(1)
A person has cover for a personal injury if—
(2)
13
14
(a)
he or she suffers the personal injury in New Zealand
or after 1 April 2002; and
on
(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).
Subsection (1)(c) applies to—
Accident Compensation Corporation v D, above n 9.
High Court judgment at [70], applying dicta of some of the Judges of this Court in
Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA), notably Elias CJ at [21] and
Blanchard and Glazebrook JJ at [70].
(a)
personal injury caused by an accident to the person:
(b)
personal injury that is treatment injury suffered by the
person:
…
[18]
(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:
“Personal injury” is defined in s 26. The relevant subsections are:
26
Personal injury
(1)
Personal injury means–
…
(b)
physical injuries suffered by a person, including, for
example, a strain or a sprain
…
(2)
[19]
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).
Treatment injury is defined in s 32:
32
Treatment injury
(1)
Treatment injury means personal injury that is—
(a)
suffered by a person—
…
(ii)
receiving treatment from, or at the direction of, 1 or more
registered health professionals; and
…
(b)
caused by treatment; and
(c)
not a necessary part, or ordinary consequence, of the treatment,
taking into account all the circumstances of the treatment,
including—
(i)
the person's underlying health condition at the time of
the treatment; and
(ii)
the clinical knowledge at the time of the treatment.
…
[20]
“Treatment” is relevantly defined in s 33:
33
Treatment
(1)
For the purposes of determining whether a treatment injury has
occurred, or when that injury occurred, treatment includes—
(a)
the giving of treatment:
(b)
a diagnosis of a person’s medical condition:
(c)
a decision on the treatment to be provided (including a
decision not to provide treatment):
(d)
a failure to provide treatment, or to provide treatment in a
timely manner:
…
The Allenby judgments
[21]
Allenby concerned a woman who became pregnant following a failed
sterilisation. The case was decided under the Injury Prevention, Rehabilitation and
Compensation Act 2001 as it stood in 2004, prior to a series of amendments in
2005.15 None of those amendments affect the applicability of Allenby to the present
appeal, although the relevant terminology changed in 2005 from “medical
misadventure” to “treatment injury”.
[22]
The judgment of Blanchard, McGrath and William Young JJ (written by
Blanchard J) first considered the history of the accident compensation scheme and
the complex drafting of the provisions in the 2001 Act. Blanchard J recorded that
15
The Act is still in force but had its name changed to the Accident Compensation Act 2001 as
from 3 March 2010.
two conclusions could immediately be drawn.16
First, the expression “personal
injury” is used in an expansive way. Second, it was unlikely that Parliament, having
expanded the scheme in 1974 to give cover for pregnancy resulting from rape, would
have sought to remove that cover in 1992 without directly addressing the subject.
The judgment discussed whether pregnancy caused by rape could be considered to
be a “personal injury caused by accident to the person” within the meaning of
s 20(2)(a). Pregnancy caused by rape could fall within this definition because the
conception of a child was a physical consequence of the rape and should not be
differentiated, for the purpose of cover under the scheme, from any other
consequence. It would be “quite extraordinary” if there were to be coverage for a
rape victim for any physical harm suffered during the assault and for any mental
injury resulting, but not for impregnation.17
[23]
Reasoning by analogy, Blanchard J considered that “since ... an impregnation
resulting from rape is, under s 20(2)(a), a personal injury, it must follow that an
impregnation resulting from medical misadventure in the form of a failed
sterilisation is also a personal injury”.18 That was because a physical consequence
(here, the pregnancy) which constitutes a personal injury where accident is involved
will equally be a personal injury where there is medical misadventure. Because
cover was available under s 20(2)(b) (personal injury caused by medical
misadventure suffered by the person), it was not necessary to consider whether there
was also cover under s 20(2)(f) (personal injury caused by a gradual process, disease,
or infection that is personal injury caused by medical misadventure suffered by the
person).19
[24]
Blanchard J offered some comment on the distinction between s 20(2)(b) and
s 20(2)(f). In the first situation, there must be a medical misadventure, that is, a
medical error; and it must give rise to a physical injury. An example is where the
claimant patient has had his or her wrong (good) leg amputated. In the second
situation, the personal injury must both (a) be caused by medical misadventure and
16
17
18
19
Allenby v H, above n 12, at [68].
At [72]–[74].
At [76].
Ibid.
(b) take the form of a gradual process, disease or infection. The example provided
was gangrene consequent upon the amputation of the wrong leg.20
[25]
Expanding on the status of pregnancy as personal injury, Blanchard J
concluded:
[80]
If … the purpose of the medical treatment is to prevent pregnancy
from occurring and by reason of medical error that purpose is not achieved,
it does not seem to us that, just because the pregnancy then occurs as a
biological process, there should be no cover for the consequences. The
development of the fetus following impregnation occurs because of the
medical error, just as in the case of the undetected tumour. It causes
significant physical changes to the woman’s anatomy, which of course occur
naturally but still cause discomfort and, at least ultimately, pain and
suffering. If a disease or infection consequential on medical misadventure
can be classified by the statute as a personal injury, it does not involve any
greater stretching of language to similarly include a pregnancy which has
the same cause. We should add that it can make no difference that the direct
cause of the pregnancy is an act of sexual intercourse which occurs
separately from the negligently performed operation. The pregnancy is still
caused by the surgeon’s negligence, and would not have happened without
that negligence.
(Emphasis added).
[26]
Tipping J agreed with the analysis of the majority, reiterating that the changes
which occur to a woman’s body as a result of pregnancy come within the compass of
“physical injuries” in the context of the legislation in issue. That was because
pregnancy is apt to cause “a substantial degree of physical discomfort and, quite
often, substantial pain and suffering”.21
[27]
However, Tipping J considered this did not mean all unwanted pregnancies
were covered by the Act. Rather, in order to attract cover the pregnancy must be
caused either by medical misadventure or by rape. Like Blanchard J, he considered
that sexual connection could only be considered to be an “accident” under the
meaning of the Act in circumstances where the woman had not given true consent:
[92]
For there to be an accident under this definition, there must be an
application of external force to the body of the person said to have suffered
the accident. In the case of rape, the relevant application of force is by the
rapist’s penis to the victim’s genitalia. That force is applied without the true
consent of the victim. In a case where there is consent, but it is vitiated by
20
21
At [64]–[65].
At [88].
some factor, and indeed in some other cases, the amount of force involved
may well be exactly the same or virtually the same as when the sexual
connection is truly consensual. Hence I do not consider it possible to say
that in the case of truly consensual sexual connection no external force is
involved. That is not an appropriate basis upon which to distinguish cases of
rape from those involving ordinary consensual intercourse. The appropriate
basis for the distinction between the two lies in the absence or presence of
true consent. If there is no true consent the force applied amounts to an
accident. If there is true consent the force applied does not amount to an
accident.
[28]
The Chief Justice also held that pregnancy following failed sterilisation
treatment constituted a personal injury through medical misadventure. Elaborating
on the question of whether pregnancy could constitute a personal injury, she held:22
Treatment includes lack of treatment, so that physical consequences which
could have been prevented may be injury for the purposes of the definition.
If a “sprain or strain” amounts to personal injury, impregnation (with its
profound impact on the physiology of the woman) is properly seen as
physical injury for the purposes of the definition of “personal injury”
adopted by the legislation.
[29]
The Chief Justice adopted a nuanced approach to question of how the injuries
suffered fell within the categories out in s 20(2) of the Act:
There is also, I think cover for personal injuries due to the gradual
[23]
process of pregnancy through s 20(2)(f). In that provision, the personal
injury which is the subject of cover is caused by “a gradual process, disease,
or infection that is personal injury caused by medical misadventure suffered
by the person”. Impregnation or conception strikes me as exactly such
personal injury. It has immediate physical impact but it also constitutes a
process which itself has consequential physical impact properly
characterised, for the reasons discussed in [18]–[19], as physical injuries for
the purposes of the definition of personal injury.
[24]
While there is some awkwardness in the references both to the
“personal injury” for which cover is provided by s 20(2)(f) and (g) and the
causative “gradual process ... that is personal injury caused by medical
misadventure suffered by the person” or the causative “gradual process ...
consequential on personal injury for which the person has cover”, the
meaning is clearly intended to be expansive in relation to the consequences
of the original personal injury, whether caused by medical misadventure or
in some other way that is covered under the Act. If linked by “gradual
process” or “disease” or “infection” to the original personal injury,
subsequent personal injury is covered.
22
At [18] (footnotes omitted).
In addition, “gradual process” was not a term confined to the progress of intrinsically
harmful conditions. Instead, the phrase should be given a general meaning.23
[30]
The Chief Justice noted that she preferred not to enter into any discussion
about other circumstances in which impregnation and the process of pregnancy may
be covered under the Act. In particular, she expressed doubt as to whether the
concept of “consent” was helpful in these circumstances.24
[31]
The ratio decidendi drawn from the majority judgments in Allenby can be
broadly summarised as follows:
Pregnancy following rape
•
Cover is available where there is a personal injury caused by an
accident to the person (s 20(2)(a))
•
Relevant “accident” = non-consensual sex
•
Relevant “personal injury” = impregnation/pregnancy
Pregnancy following failed sterilisation
•
Cover is available where there is a personal injury that is medical
misadventure/treatment injury suffered by the person (s 20(2)(b))
•
Relevant “medical misadventure”/“treatment injury” = failed
sterilisation
•
Relevant “personal injury” = impregnation/pregnancy
Discussion
[32]
In our application of the statutory provisions to this case we intend to follow
the methodology set out in the judgment of Blanchard J, a course urged on us by
Mr Corkill QC for the Corporation. A claimant for cover must meet all three of the
requirements in s 20(1) of the Act:
23
24
At [27]–[28].
At [30].
[33]
s 20(1)(a):
he or she suffered personal injury in New
Zealand on or after 1 April 2002.
s 20(1)(b):
the personal injury is any of the kinds of injuries
described in s 26(1)(a), (b), (c) or (e).
s 20(1)(c):
the personal injury is described in any of the
paragraphs in s 20(2).
As to the first requirement, there is no dispute that, if the appellant suffered
personal injury, this occurred in New Zealand on or after 1 April 2002. The second
and third requirements are both at issue. As to the second, the appellant relies on
s 26(1)(b) – physical injury suffered by a person. As to the third, the appellant relies
on s 20(2)(b) – personal injury that is treatment injury suffered by her.
Section 20(1)(b)
[34]
As noted, the appellant relies on personal injury of the kind described in
s 26(1)(b), that is “physical injuries suffered by a person, including, for example, a
strain or a sprain”. The appellant has given unchallenged evidence that, had she
been given a correct diagnosis following the 20 week scan, she would have chosen to
seek an abortion. The question is therefore whether continuation of the pregnancy
following the incorrect diagnosis and the consequential inability of the mother to
implement her choice to terminate the pregnancy can constitute a physical injury
suffered by the mother for the purpose of the definition of “personal injury”.25
[35]
We are satisfied that the answer is yes. In so concluding we agree with
Blanchard J in Allenby that the expression “personal injury” is used in an expansive
way.26 By analogy with the impregnation of the victim as a physical consequence of
rape or of a failed sterilisation treatment, we consider that the continued pregnancy
of the appellant following a misdiagnosis in the 20 week scan is capable of being an
injury suffered by the appellant for the purposes of the Act. It is true that the
appellant fell pregnant by natural process prior to the 20 week scan.
But the
analytical focus for the purposes of cover must be on the physical consequences to
the appellant in the period post the misdiagnosis.
25
26
We will later discuss the implications for the claim of the making of this choice.
Allenby v H, above n 12, at [68].
[36]
What has occurred to the appellant following the errors by the health
professionals is ongoing development of the foetus. This causes significant and
ongoing physical changes to the anatomy of the appellant which, whilst occurring
naturally, cause discomfort and ultimately pain and suffering. Like Blanchard J27 we
see merit in the comparison with the case of an undetected tumour.
[37]
The same outcome is reached applying the approach of the Chief Justice in
Allenby to physical injury. She too accepted that the statutory provisions should be
“expansively viewed”.28 In terms of the definition in s 26(1)(b), and using a sprain
or strain as a comparator, we consider that the profound impact from the pregnancy
on the physiology of the appellant post the misdiagnosis falls within the definition of
physical injuries.29 Therefore we cannot accept Mr Corkill’s submission that the
continuation of an existing pregnancy cannot constitute a personal injury.
[38]
We do accept that the present case is in a different context to that discussed in
Allenby. However, we consider that the reasoning applicable in the situation of
impregnation following rape or failed sterilisation has equal application to the
physical consequences (namely the ongoing development of the foetus inside the
mother) following a misdiagnosis. We see no convincing reason based on the text
and purpose of the statute for treating the ongoing physiological changes that
occurred to the mother after 20 weeks as being outside the scope of “personal injury”
as defined in s 26 of the Act. The purpose provisions in s 3, referring to minimising
the impact of injury and establishing entitlements of treatment, rehabilitation and
impairment, support our conclusion.
Section 20(1)(c)
[39]
Section 20(1)(c) provides that the personal injury must be “described in any
of the paragraphs in subsection (2)”. We deal first with s 20(2)(b): “personal injury
that is treatment injury suffered by the person”. We have already addressed the
question of “personal injury” under the heading of injury type, so the focus now is
on whether the appellant’s injuries constitute a “treatment injury”.
27
28
29
At [80].
At [18].
Subject of course to the question of causation which we address below.
[40]
The term “treatment injury” is defined in s 32(1) quoted in full at [19] above.
A treatment injury is a personal injury that is:
(a)
suffered by a person seeking treatment from one or more registered
health professionals; and
[41]
(b)
personal injury caused by treatment; and
(c)
not a necessary part, or ordinary consequence, of the treatment.
There is no doubt that the first and third elements are satisfied on the present
facts. We therefore move to consider the second element, in two stages. First, was
there treatment for the purposes of s 32(1) of the Act? Second, was the injury caused
by that treatment?
(a)
Treatment
[42]
Section 33(1) of the Act provides a non-exhaustive definition of “treatment”
for the purposes of determining whether a treatment injury has occurred or when
such an injury occurred.
The full subsection is quoted at [20] above.
The
possibilities for present purposes include:
a diagnosis of a person’s medical condition: s 33(1)(b);
a decision on the treatment to be provided (including a decision not to
provide treatment): s 33(1)(c); and
a failure to provide treatment, or to provide treatment in a timely
manner: s 33(1)(d).
[43]
We are satisfied that the appellant’s case falls within each of the
subparagraphs in s 33(1)(b), (c) and (d) of the Act. As to (b), this was a diagnosis of
the medical condition of a person (in this case the mother). As to (c), since no
abnormalities were detected, there was no discussion or follow-up with the mother to
provide further treatment in the form of scans or tests. As to (d), treatment was not
provided in a timely manner by further scans and tests. Contrary to the approach in
the Inside Radiology publication,30 there was no opportunity for further investigation
or treatment that would have ordinarily followed, had the presence of the spina
bifida lesion been detected in the scanning process.
(b)
Caused by treatment
[44]
This leads to consideration of the final requirement: was the personal injury
“caused by the treatment”? The misdiagnosis here involved the failure to diagnose
the spina bifida lesion in the baby. This in turn meant a failure to provide further
scans and advice to the mother to obtain further medical advice and treatment, and
the mother’s pregnancy continued. The appellant contends that the misdiagnosis
resulted in a continuation of the pregnancy because the mother had no opportunity to
seek a termination as she would have if the correct diagnosis had been made and she
had been informed of the child’s condition.
[45]
This raises the question whether the concept of loss of chance may be
sufficient to meet the causation requirement in s 32(1)(b). Is the loss of a chance to
have a termination sufficient to amount to a treatment injury being suffered by a
woman in terms of s 32(1)?
Or is it necessary to show on the balance of
probabilities that the termination would have taken place? If it is the former, then it
is not necessary to show that a termination would, on the balance of probabilities,
have actually taken place.
[46]
We consider that the latter approach should be applied.
This Court in
Accident Compensation Corporation v Ambros considered the issue of causation.31
The case concerned a woman who died from a heart attack secondary to a condition
known as “spontaneous coronary artery dissection” shortly after giving birth.
Ms Ambros’ husband subsequently sought cover based on medical error, arguing that
her death had been caused by failures to diagnose and treat her condition.
[47]
The judgment of the Court, given by Glazebrook J, held that the appeal was
governed by Atkinson v Accident Rehabilitation Compensation and Insurance
30
31
Referred to at [10] above.
Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR 340.
Corporation.32
In that case, the Court of Appeal found that the claimant was
required to prove (on the balance of probabilities) the personal injury resulted from
medical error. A lesser test of “increased risk” or a reverse onus test was found to be
inconsistent with the language and policy of the Act. The Court of Appeal in Ambros
saw no reason to depart from its previous decision. If anything, the decision of the
legislature to amend the causation requirement in relation to medical misadventure
from “resulting from” to “caused by” (a change which made the position “even
clearer”) indicated acceptance of the Atkinson position.
[48]
In Ambros Glazebrook J also noted that dissatisfaction with the traditional
test of causation had inspired a number of proposed modifications to the “but for”
stage of the inquiry.33 One example was the development of the “loss of chance”
principle. The Judge observed that the “loss of chance analysis seems to us to be
incompatible with the accident compensation regime”.34 Accordingly the Court
concluded:35
In terms of the causation principles set out in Atkinson, any risk must be
realised in the occurrence of a personal injury and the personal injury must
be proved to have been caused by the risk factor involved. In keeping with
this principle, if the omission to treat causes an identifiable added injury,
cover would be available for that injury.
[49]
The Court in Ambros also considered questions relating to evidential onus.
Glazebrook J noted that while Atkinson excluded any possibility of a shift in the
legal burden, it did not rule out a shift of the tactical burden.36 This has since been
applied in the High Court.37 In Sam v Accident Compensation Corporation, for
example, Mallon J explained that “in assessing whether [a claimant has] proved
causation on the evidence, the Court can take into account the absence of counter
evidence which ought to have been in [the Corporation’s] power to produce”.38
32
33
34
35
36
37
38
Atkinson v Accident Rehabilitation Compensation and Insurance Corporation [2002] 1 NZLR
374 (CA).
At [26].
At [46].
Ibid.
At [63].
Accident Compensation Corporation v McEnteer HC Wellington CIV-2008-485-1800,
1 December 2008; Sam v Accident Compensation Corporation HC Wellington
CIV-2008-485-829, 4 November 2009; and Accident Compensation Corporation v Stanley
[2013] NZHC 2765.
At [4].
[50]
If the “traditional” or standard approach to causation is applied to cases of
failure to diagnose resulting in personal injury, the relevant question is: if the
diagnosis had been properly made, and proper treatment had followed, was the
patient more likely than not to have recovered? If the answer is “yes”, it can be said
that the misdiagnosis “caused” the resulting injury.
[51]
As to causation, Mr Corkill submits that on the medical evidence before the
Court, it cannot be assumed that it would have been open to the appellant to seek a
termination. The relevant scan was provided at the 20 week point. Under s 187A(3)
of the Crimes Act 1961, a termination cannot be provided after 20 weeks gestation
unless:
… the person doing the act believes that the miscarriage is necessary to save
the life of the woman or girl or to prevent serious permanent injury to her
physical or mental health.
[52]
The Corporation contends that, on the basis of the medical evidence before
the Court, it cannot be assumed that this high threshold could have been satisfied.
Mr Corkill notes that Dr Tony Baird, a consultant obstetrician and gynaecologist,
provided a report suggesting that there “could have been difficulty creating a legal
case for abortion”.
[53]
Mr Corkill also relies on the contents of a report by Dr Thorsten V Stanley, a
consultant paediatrician, to the Corporation in December 2007. Two particular
passages are cited:
Should the myelomeningocele [have] been recognised in [the baby] at that
relatively early scan (20 weeks) [the baby’s] mother’s GP … indicates that
she is uncertain that [the baby’s] mother [the appellant] would have elected
to terminate the pregnancy. She notes that [the appellant] [had] twice
declined screening for Down Syndrome from which I presume she deduces
that [the appellant] would probably not have proceeded to terminate the
pregnancy even if a diagnosis of myelomeningocele had been made at that
stage. Information regarding this from [the appellant] herself is missing
from the notes.
…
Furthermore if my advice had been sought in this pregnancy the low level of
the lesion and the presence of active leg movements would have led me to
counsel the family to continue the pregnancy as in this setting the quality of
life for the infant would be expected to be good to excellent.
[54]
The appellant has given evidence that had the condition been correctly
diagnosed, she would have sought a termination of her pregnancy. If a termination
had been available to the appellant and had been carried out, there can be little doubt
that the procedure would have been successful and the appellant would no longer
have been pregnant.
[55]
Accordingly the evidence presently available satisfies part of this inquiry,
namely, what the appellant would have done had there been a correct diagnosis. But
as Mr Corkill submitted, any request for termination by the appellant would need to
have been the subject of medical assessment to determine eligibility. 39 That issue
has not hitherto been addressed as a matter of evidence. Faire J observed that
“abortion could have been quite a disproportionate response to the likely
prognosis”.40 But the factual aspects of this question have not been addressed either
in that Court or in the District Court.
[56]
Further evidence is therefore needed. We are satisfied that, if the appellant is
able to establish on the balance of probabilities that she would have been able to
obtain a termination, she would be entitled to cover under the Act on the basis that
she had suffered personal injury that is a treatment injury as defined.
[57]
Our view that the ongoing pregnancy potentially falls within s 20(2)(b) is
sufficient for the purposes of deciding the question raised on this appeal. However,
we also observe that the physical consequences arising from the ongoing process of
pregnancy themselves constitute personal injury that is treatment injury for the
purposes of cover under s 20(2)(f).
This is because many of the physical
consequences of the continued pregnancy are caused by a gradual process suffered
by the mother.41 The availability of cover under this provision would, however, be
subject to the same causation inquiry necessary to establish entitlement under
s 20(2)(b) of the Act.
39
40
41
It seems that the issue would be whether, as a matter of fact, the appellant could have met the
requirements of s 187A(3) of the Crimes Act 1961. As to the framework in which such
decisions are made, see the Contraception, Sterilisation, and Abortion Act 1977, ss 10–46 and
Right to Life New Zealand Inc v Abortion Supervisory Committee [2012] NZSC 68, [2012]
3 NZLR 762.
HC judgment, above n 4, at [45].
Compare the similar conclusion of Elias CJ in Allenby at [20]–[26].
Scope of appellant’s claim
[58]
The sole issue before us arising from the question in the case stated relates to
the availability of cover. If all elements of causation can be satisfied the appellant
will need to address the scope of the claim in terms of compensation.
[59]
Mr Schmidt confirmed that this question had not been addressed because the
Corporation had hitherto denied cover, and this decision had been upheld in the
District Court and on appeal on a question of law to the High Court. He postulated
that the appellant’s claim might include earnings related compensation both short
term (ie during the pregnancy) and arguably beyond that. He stressed that the focus
of this appeal was on the mother’s claim as separate from that of the child.
[60]
We have not heard full argument on the scope of the appellant’s claim. It is
therefore preferable that we make no further comment about it.
Referral back to the District Court?
[61]
The appellant’s appeal is made pursuant to s 163 of the Act, which governs
appeals to the Court of Appeal on questions of law. Section 163(3) provides that
appeals to the Court of Appeal must be dealt with in accordance with the rules of the
Court. Rule 48(4) of the Court of Appeal (Civil) Rules 2005 provides that the Court
may give any judgment and make any order which ought to have been given or
made, and make any further or other orders that the case may require.
[62]
In Ambros this Court considered whether to refer the matter back to the High
Court or the District Court:42
Given that the case was stated by the High Court, we consider that the matter
should be referred back to that Court. Further, Mr Ambros should have the
opportunity to have the High Court assess his argument that causation has
already been proved to the requisite standard. If, however, the High Court
decided that the parties should be allowed to adduce further evidence, it
seems to us, for the reasons given by the Corporation ..., that the most
suitable course would be for the High Court to refer the matter back to the
District Court.
42
At [113].
[63]
A similar approach was taken in Accident Compensation Corporation v
Miller.43 As it was unclear whether further evidence would be needed, this Court
referred the matter to the High Court indicating that if further evidence was required
the case should be referred to the District Court.
[64]
In the present case, it is apparent that further evidence as to the appellant’s
eligibility for a termination will be required. For that reason, we consider that it
would be appropriate to refer the matter directly back to the District Court. This
approach is consistent with Ambros and Miller and will enable that aspect to be
resolved without further delay.
Result and orders
[65]
For the above reasons the appeal is allowed.
[66]
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.
[67]
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.
[68]
We make an 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.
[69]
The respondent is to pay the appellant costs for a standard appeal on a
Band A basis and usual disbursements.
[70]
43
There is no order for costs in favour of the intervener.
Accident Compensation Corporation v Miller [2013] NZCA 141, [2013] 3 NZLR 312.
[71]
This case may be cited as Cumberland v Accident Compensation
Corporation.
Solicitors:
Schmidt & Peart Law, Auckland for Appellant
Fisher Lamberg, Auckland for Intervener