ACCIDENT COMPENSATION CORPORATION V D AND ANOR CA CA329/07

ACCIDENT COMPENSATION CORPORATION V D AND ANOR CA CA329/07 22 December 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA329/07 [2008] NZCA 576BETWEEN ACCIDENT COMPENSATION CORPORATION Appellant AND D First Respondent AND MADHURI BALLAL Second Respondent Hearing: 10 July 2008 Court: William Young P, Arnold and Ellen France JJ Counsel: B A Corkill QC and J Roberts for Appellant J A Hope and C L Pidduck for First Respondent A H Waalkens QC and C L Garvey for Second Respondent Judgment: 22 December 2008 at 3 pmJUDGMENT OF THE COURT A The answer to the question stated is that the High Court was wrong in law in concluding that pregnancy is a "physical injury" and therefore a "personal injury" under the Injury Prevention, Rehabilitation, and Compensation Act 2001. The appeal is accordingly allowed. B No order as to costs.REASONSArnold and Ellen France JJ [1] William Young P (dissenting) [74]ARNOLD AND ELLEN FRANCE JJ(Given by Ellen France J)Table of ContentsPara NoIntroduction [1]The legislative framework [5]The competing contentions [10]The High Court decision [12]The legislative history [17]Accident Compensation Act 1972 [18]Accident Compensation Act 1982 [23]Accident Rehabilitation and Compensation Insurance Act 1992 [25]Accident Insurance Act 1998 [33]The authorities [37]Discussion [54]Result and costs [73]Introduction[1] In October 2002, the first respondent, D, underwent a tubal ligation operation. The operation was performed by Dr Ballal, the second respondent. The operation failed and D became pregnant in 2003. She gave birth to a child in March 2004. The child's medical conditions are such that ongoing medical assistance is needed. [2] D sought cover for herself under the Injury Prevention, Rehabilitation, and Compensation Act 2001 ("the 2001 Act"). In order to obtain cover, D had to have suffered a "personal injury" as defined in the 2001 Act. In her claim the injury was described as her pregnancy. [3] The Accident Compensation Corporation, the appellant, declined cover in part because it considered the definition of personal injury was not satisfied. Onreview, the Corporation's decision was upheld on the basis that pregnancy is not personal injury but, rather, a natural physiological function. Judge Cadenhead on appeal to the District Court disagreed: DC WN AI360/04 25 August 2005. The Corporation obtained leave and appealed from the decision of the District Court. In a decision now reported as Accident Compensation Corporation v D [2007] NZAR 679, Mallon J dismissed the appeal. A case was then stated to this Court in these terms:Was [the High Court] wrong in law in concluding that pregnancy is a "physical injury" and therefore a "personal injury" under the [Injury Prevention, Rehabilitation, and Compensation Act 2001]?[4] The question is one of statutory interpretation and we turn first to the relevant statutory provisions.The legislative framework[5] D's claim for cover had to be considered under the medical misadventure provisions of the 2001 Act. Cover was available for "personal injury caused by medical misadventure": s 20(2)(b) (since amended). That phrase was defined in s 32(1) as "personal injury" that:(a) is suffered by the person seeking or receiving treatment given by or at the direction of a registered health professional ; and (b) is caused by medical error or medical mishap [as defined in ss 33 and 34 respectively].[6] The term "personal injury" was, in turn, described in s 26(1) as meaning:(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 s 21 [mental injury caused by criminal acts]; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.Section 26(1)(b) is the focus of the present case. [7] Subsections 26(2) to (4) then respectively set out various matters which were not included in the definition of "personal injury" as follows: (a) injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in s 20(2)(e) to (h); (b) a cardio-vascular or cerebro-vascular episode unless it is personal injury of a kind described in s 20(2)(i) or (j); and (c) injury caused wholly or substantially by the ageing process or personal injury to teeth or dentures caused by the natural use of those teeth or dentures. [8] Relevantly, ss 26(2) and 20(2)(f) make it clear that the exclusion from the definition of personal injury of injury caused by a gradual process, disease, or infection or by a cardio-vascular or cerebro-vascular episode does not apply to personal injury of that type where there is medical misadventure. Thus, as Manning in "Treatment Injury and Medical Misadventure" in Skegg and Paterson (gen eds)Medical Law in New Zealand (2006) 679 at 683 observes:[T]he development, continuation or progression of a disease or infection can amount to "physical injury" where it is caused by treatment and qualifies as [medical misadventure].[9] The concept of "medical misadventure" has now been replaced by that of "treatment injury": s 13 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005.The competing contentions[10] The Corporation points out that since 1992, when the legislation separated the concept of personal injury from that of causation, there has been a stand alone requirement for personal injury. The Corporation contends that those words,"personal injury", connote a need for harm or damage and so the natural process of pregnancy is not included in this phrase. The Corporation further submits that the Judge erred in not correctly assessing the effect of the legislative changes from 1992, in the approach to the ordinary definition of "injury", and in not addressing the complexities of what constitutes injury in this situation. [11] Both respondents say that Mallon J was correct. They submit that the ordinary and natural meaning of "personal injury" can encompass pregnancy because "injury" includes interference with bodily integrity. The respondents rely on the absence of any exclusion of pregnancy from the legislative scheme, the context of the legislation, and advance various policy considerations in support of the view reached by the Judge.The High Court decision[12] Mallon J began with the proposition that developments in related areas of the common law illustrate that "pregnancy" can be described as an "injury" either because it can be said to be "harm" or an invasion of bodily integrity despite being a natural bodily process: at [65]. [13] Next the Judge said that, in terms of the 2001 Act, bodily harm is the natural and ordinary meaning of "physical injury", but "interference with bodily integrity" is a possible meaning of that phrase: at [66] and [69]. Mallon J considered at [69] that such an interference would need to have "detrimental physical effects" before it could be described as an "injury" in terms of the 2001 Act. [14] The Judge stated that the physical impacts of pregnancy were of a kind that was intended to be covered by the words "physical injuries" as used in the 2001 Act and in light of its purpose. That result follows when the effects of pregnancy are viewed from "the perspective of the woman's body in its pregnant state as compared with its pre-pregnant state": at [76]. [15] In Mallon J's view, natural processes per se are not excluded by the Act. Rather, the focus is on the cause of that process. Here, the claim is for personalinjury (pregnancy) resulting from medical misadventure. The legislative changes do not indicate an intention to exclude pregnancy. Further, the Judge said at [88], the fact that pregnancy arising from consensual sexual intercourse is not an accident in terms of the legislation does not prevent pregnancy from falling within the term "physical injury". The Judge also placed weight at [92] on the argument that the Corporation's approach would create an "arbitrary distinction" between the "unlooked for physical consequence of treatment in sterilisation cases and other physical consequences of other kinds of treatment where medical mishap or error" has taken place. [16] Applying this reasoning, Mallon J concluded that the District Court was correct in deciding that pregnancy is a "physical injury" and therefore a "personal injury" under the 2001 Act. It followed, the Judge found, that cover is available under the Act for pregnancy where it is caused by medical error or mishap.The legislative history[17] In determining the question before us, it is helpful to consider two aspects of the accident compensation scheme over the years. The first aspect is the way in which the prerequisites for cover have been defined and, related to that, how medical misadventure has been treated. The second aspect is the approach to cover for injuries resulting from criminal offences.Accident Compensation Act 1972[18] Under the Accident Compensation Act 1972, cover was available for "personal injury by accident". That phrase was defined in s 2(1) as including incapacity resulting from certain occupational diseases. A more detailed definition was introduced from 8 November 1974 with the enactment of the Accident Compensation Amendment Act 1974. Section 2(1) thereafter provided that "personal injury by accident" included:(a) (i) The physical and mental consequences of any such injury or of the accident: (ii) Medical, surgical, dental or first aid misadventure: (iii) Incapacity resulting from an occupational disease or industrial deafness [in certain circumstances]: (iv) Actual bodily harm arising [in certain circumstances]:[19] There were various exclusions, particularly, damage caused by a cardio- vascular or cerebro-vascular episode and damage to the body or mind "caused exclusively by disease, infection, or the ageing process": para (b)(i) and (ii) of the definition of "personal injury by accident" in s 2(1). [20] Prior to the enactment of the 1974 Amendment Act, compensation was payable for pregnancy resulting from a sexual assault under the Criminal Injuries Compensation Act 1963. Under s 17(1) of that Act, compensation could be awarded for "injury" resulting from an act or omission within the description of any of the specified offences (including rape and other sexual assaults). "Injury" was defined in s 2(1) as meaning "actual bodily harm" and as including "pregnancy and mental or nervous shock". [21] The Criminal Injuries Compensation Act was repealed by the 1974 Amendment Act. Section 105B(1) of the 1972 Act, which was inserted by s 6 of the 1974 Amendment Act, provided that for the purposes of compensation for criminal injuries, the expression "actual bodily harm" includes "pregnancy and mental or nervous shock". [22] In terms of s 105B(2), where "actual bodily harm" was suffered by any act or omission within the description of certain specified offences in the Crimes Act 1961, the bodily harm was "deemed" to be "personal injury by accident". Cover was therefore available. The specified offences included rape and sexual assault on a girl under 12 years of age.Accident Compensation Act 1982[23] There was little relevant change brought about by the Accident Compensation Act 1982 which was defined in the long title as a consolidating and amending Act. (See also Hon James Bolger, Minister of Labour, on the introduction of the bill (16 September 1982) 446 NZPD 3,273.) Again, cover was available for "personal injury by accident". That phrase was defined in s 2(1) as including:(a) (i) The physical and mental consequences of any such injury or of the accident: (ii) Medical, surgical, dental, or first aid misadventure: (iii) Incapacity resulting from an occupational disease or industrial deafness [in certain circumstances]: (iv) Actual bodily harm (including pregnancy and mental or nervous shock) arising by any act or omission which is within the description of any of the [specified offences, including rape].[24] The exclusions (largely) for cardio-vascular or cerebro-vascular episodes and for damage to the body or mind caused exclusively by disease, infection, or the ageing process were retained.Accident Rehabilitation and Compensation Insurance Act 1992[25] Unlike the 1982 Act, the Accident Rehabilitation and Compensation Insurance Act 1992 was intended to effect changes to the accident compensation scheme reflecting concerns about its increasing cost. Hence, the long title recorded that it was an Act "to establish an insurance-based scheme to rehabilitate and compensate in an equitable and financially affordable manner" those who suffer personal injury. The Minister of Labour, Hon William Birch, on the introduction of the bill relevantly referred to the need for "cost containment and fairer apportionment" and saw the new definition of "personal injury" as overcoming "the problems of boundary shifting and costs arising from a lack of appropriate definitions under the existing legislation": (19 November 1991) 520 NZPD 5,388 and 5,389). (See also Oliphant "Beyond Woodhouse: Devising New Principles forDetermining ACC Boundary Issues" (2004) 35 VUWLR 915 at 924 where the author notes the deliberate omission of the facts of Accident Compensation Corporation v E [1991] 2 NZLR 228 (HC) aff'd [1992] 2 NZLR 426 (CA) and ofMitchell v Accident Compensation Corporation [1991] 2 NZLR 743 (HC) aff'd [1992] 2 NZLR 436 (CA). In terms of ACC v E, cover was available for the mental consequences of an accident although there was no physical injury. The effect ofMitchell v ACC was that no particular external event had to be identified as giving rise to the injury. There is also a useful summary of some of the "milestones" in the evolution of the accident compensation scheme since 1974 in the Corporation's report ACC Legislation and Regulations: Suggestions for Integrated Change(December 1993) at 14 – 15.) [26] Under the 1992 Act, the concept of personal injury was separated from that of causation. Cover was available for "personal injury" caused by an accident; or caused by a work-related gradual process, disease or infection; or medical misadventure as defined in s 5; or a consequence of treatment for personal injury: s 8(2). [27] "Personal injury" was defined in s 4(1) as meaning the death of, or physical injuries to, a person, and any mental injury suffered by that person which is "an outcome of those physical injuries" and was given "the extended meaning assigned to it by" s 8(3). Section 8(3) extended cover to personal injury that is mental or nervous shock "suffered by a person as an outcome of any act of any other person performed on, with, or in relation to the first person (but not on, with, or in relation to any other person)" being relevantly an act within the description of any offence listed in the First Schedule to the Act. [28] The list in the First Schedule included sexual violation and a number of other sexual offences. The effect of s 8(3) was that cover could be established for victims of sexual crimes by mental harm alone, ie, without the necessity of physical injury. This reflected the concern expressed by the Law Commission in its report Personal Injury: Prevention and Recovery (NZLC R4 1988) at [211] over the need for "special provision for victims of sexual assault or other criminal attack involving significant or lasting mental distress or other impairment". Similar issues wereraised in the public discussion paper which preceded the introduction of the 1992 legislation: Accident Compensation: A Fairer Scheme (Discussion Paper 30 July 1991) at 32 – 33 (and see Hon William Birch on the introduction of the bill (19 November 1991) 520 NZPD 5,389). [29] The previous exclusions for cardio-vascular or cerebro-vascular episodes except those resulting from medical misadventure or work injury were maintained: s 4(2). [30] "Medical misadventure" was defined in s 5(1) as "personal injury resulting from medical error or medical mishap", both of which were in turn defined in s 5(1). [31] The bill (which became the 1992 Act) as introduced and as reported back was, in terms of the relevant features for these purposes, broadly similar to the Act. The approach in the bill was opposed by the then Labour-led opposition in general terms on the basis that the scheme it was replacing was more equitable. In that context, at the committee stage, members of the opposition proposed various amendments including one to the definition of "personal injury". That proposed amendment was not adopted. The latter amendment would have introduced a definition similar to that contained in the 1982 Act and included the following ((24 March 1992) 523 NZPD 7,226 – 7,227):"Personal injury by accident" – (a) Includes – (iv) Actual bodily harm (including pregnancy and mental or nervous shock) arising by any act or omission of any other person which is within the description of any of the offences specified in sections 128, 132, and 201 of the Crimes Act 1961, irrespective of whether or not any person is charged with the offence and notwithstanding that the offender was legally incapable of forming a criminal intent: (Emphasis added.)[32] The issue of cover for pregnancy resulting from sexual violation was raised before the Labour select committee, which considered the bill, by a submission from the Otago District Law Society (submission L/92/471). The Law Societycommented that cl 3(1)(c) of the bill as introduced provided cover for mental disorder suffered as a result of sexual assaults but that the effect of the bill was to exclude cover for pregnancy which resulted from sexual assault: at 11. The Law Society was opposed to the change and considered the bill should be amended so that pregnancy as a result of sexual assault remained covered: at 12. We have not found any record of consideration of the Society's submission by the select committee.Accident Insurance Act 1998[33] The other step in the legislative history we should mention was the enactment of the Accident Insurance Act 1998. Under the 1998 Act, cover was available for "personal injury" including personal injury by medical misadventure (s 39). The definition of "personal injury" in s 29 of this Act adopted a formula like that in s 26 of the 2001 Act. Hence, s 29(1) defined "personal injury" as: (a) The death of an insured; or (b) Physical injuries suffered by an insured, including, for example, a strain or a sprain; or (c) Mental injury suffered by an insured because of physical injuries suffered by the insured; or (d) Mental injury suffered by an insured in the circumstances described in section 40.[34] Again, the definition largely excluded personal injury caused wholly or substantially by a gradual process, disease or infection and most cardio-vascular or cerebro-vascular episodes: s 29(2) and (3). There was also an exclusion for personal injury caused wholly or substantially by the ageing process and of personal injury to teeth caused by the natural use of those teeth: s 29(4). [35] "Personal injury caused by medical misadventure" was defined in ss 35 and 357. [36] Cover was also available for mental injury caused by acts within the description of an offence listed in Schedule 3: s 40. Again, those offences included rape and other sexual assaults.The authorities[37] We come back later to the detail of some of the authorities. For present purposes we note first that the approach taken has varied reflecting the changes in the legislation. It is helpful also at this point to set out the observations of Cooke J (as he then was) in L v M [1979] 2 NZLR 519 (CA) because of the influence thesedicta had on the cases in the earlier period. [38] In L v M at 529, Cooke J noted that before the 1974 amendment, there was no relevant particular definition of personal injury by accident. The words, Cooke J said:[H]ad to be understood in their ordinary sense. In the ordinary sense the conception and the consequent childbirth can be said to have been caused by accident – namely the failure of the operation. But I do not think that either the conception or the childbirth could be described as a personal injury to the mother.[39] Cooke J noted the change made by the 1974 amendment so that from 1 April 1975 pregnancies caused by rape or certain other acts or omissions, were included within the scope of personal injury by accident by s 105B. Cooke J said at 530:This express addition strengthens the foregoing view, but I would reach the same conclusion without it. Nor was it argued for the appellant that the pregnancy or the childbirth were themselves personal injuries. The argument was that a personal injury by accident occurred in the operation and that the damages claimed arise directly or indirectly out of that injury. In the end the question must be one of the ordinary and natural use of language in relation to the facts of this case. In my opinion it would not be ordinary or natural to say that the damages claimed for the cost of providing for the child until he is independent arise, either directly or indirectly, out of the injury to the ligament. Similarly it does not seem to me that the pregnancy, however unwanted, or the childbirth can naturally be described as personal injuries. As already indicated, the contrary was not argued for the appellant. But the statement of claim also alleges that the wife suffered physical and mental distress. I would accept that physical or mental distress is a personal injury and that on the allegations in the statement of claim such injuries should be treated as having been suffered by accident – namely a mistake in the operation. On this footing the reference in para 11 to suffering physical and mental distress should be struck out. If necessary the claim for damages, at present undifferentiated, could be amended.[40] Cooke J went on to discuss the various additions made by the 1974 amendment to the definition of personal injury by accident. He said at 530:In particular the phrase now includes "medical misadventure". I think there was a medical misadventure here. It is arguable that under the new definition this would be enough to bring s 5(1) into play – that it is unnecessary to show as well anything that would ordinarily be called a personal injury. The decision of Judge Blair in Re Mrs McR: Decision No 156 (1978) 1 NZAR 567 may support this view. As the new definition did not apply at the date of the unsuccessful operation in the present case, I would leave the point to be decided in a case where it does arise.[41] L v M had its sequel with XY v Accident Compensation Corporation (1984) 2 NZFLR 376 (HC) which involved the woman whose claim was dealt with inL v M. After L v M, the Corporation gave the woman cover. She received a payment for pre-birth expenses and a lump sum award for loss of amenities and/or pain and suffering. At issue in XY was her claim for about $18,500 by way of expenses for the maintenance of the child. [42] Jeffries J described as "highly artificial" the decision that conception of the child in these circumstances was a medical misadventure but that was the basis on which cover had been granted: at 380. Jeffries J considered that after the birth of a healthy child, the injury had "healed": at 380. [43] The position in this early period is accurately summarised in Manning "Civil Proceedings in Personal Injury Cases" in Skegg and Paterson 725 at 765 as follows:Under the [1972 Act], before the undefined phrase "medical misadventure" was inserted in 1974, cover was doubtful because of Cooke J's influential dicta in L v Mthat an unwanted pregnancy and birth from a failed sterilisation of the mother could not naturally be described as a "personal injury" to her. But Cooke J considered it arguable that these might amount to a Medical Misadventure, the new definition of which did not then explicitly require proof of personal injury. Thereafter, unwanted pregnancy and childbirth resulting from a failed sterilisation of the mother were treated as covered as a Medical Misadventure, provided that Medical Error or Mishap could be shown.[44] Then, as Manning notes at 765, the position changed with the passage of the 1992 Act with its requirement for proof of "personal injury" for the purposes of medical misadventure:Thus, after 1992, District Court decisions reverted to Cooke J's view in L v M that conception and pregnancy are natural processes and do not amount to "personal injury" to the mother for which cover exists.(See for example: DK v Accident Rehabilitation and Compensation Insurance Corporation [1995] NZAR 529 (DC); MM v Accident Rehabilitation andCompensation Insurance Corporation DC ROT DCA 217/95 12 September 1996;MT v Accident Rehabilitation and Compensation Insurance Corporation DC ROT DCA 277/95 25 September 1996; Bell v Accident Rehabilitation and Compensation Insurance Corporation DC WN DCA 98/96 22 April 1999; and Pritchard v Accident Rehabilitation and Compensation Insurance Corporation DC WN DCA 267/95 3 October 1996.) [45] We need to refer also to two more recent cases. The first of these, SGB v WDHB [2002] NZAR 413 (HC), arose in the context of the 1998 Act. The plaintiffs were a married couple and sought damages from the defendant after the wife gave birth to a child some years after the defendant had performed a sterilisation operation on the husband. Gendall J observed that conception can be accidental or unintended. However, the Judge said "it is debatable whether it could be described as a personal injury when it arises out of a natural process": at [31]. Gendall J considered it was clear from the definitions in s 29 that personal injury was not intended to include matters arising out of natural processes such as ageing or a gradual process. But, the Judge continued at [31]:It perhaps could be argued that if there is an abnormal reaction to treatment given to a woman in circumstances where medical error or mishap occurs "at the time of the treatment" then conception might be "personal injury". For example a medical error or mishap at the time of surgical performance of a tubal ligation so that a woman later suffers a "complication" of conception might fall within the definition of personal injury in s 35(2). That, however, is quite a different situation to where a woman conceives naturally and gives birth in the situation where the accidental conception did not arise out of any medical error because of treatment given to her.[46] The Judge then asked, if there was "injury" what was it and when does it occur? He continued at [32]:It cannot be the development or birth of a baby, such being actual processes caused by a gradual process after conception. So is the act of conceiving the "injury"? If it is, is it injury to the woman? Or is it simply fusion of an already produced ovum which then implants? The questions highlight some of the difficult concepts and suggests that conception, as normally understood, is not personal injury to the mother. But I do not have to decide the point at this stage.[47] The other case we should note at this point is Patient A v Health Board X HC BLE CIV-2003-406-14 15 March 2005. In that case, Baragwanath J dealt with claims in negligence and breach of fiduciary duty after a failed tubal occlusion. Patient A's child was born with Down's syndrome. Her claim was brought on thebasis that the doctor had failed to warn her of the risk of failure with the operation. The claims did not succeed because the Judge was not satisfied that the doctor had failed to warn her. [48] Baragwanath J then turned to whether the common law claim was in any event barred because there was cover under the 1992 Act. The Judge considered the possibility of cover as either personal injury by accident or personal injury by medical misadventure. [49] Relying on Green v Matheson [1989] 3 NZLR 564 at 572 (CA), Baragwanath J said that "injury" includes "interference with [a person's] bodily integrity": at [54]. The Judge also said that "personal injury" was established by proof of failure of the Filshie clip and "its potential consequence of removing Ms A's protection from pregnancy": at [55]. [50] However, Baragwanath J noted at [56], it did not necessarily follow that Ms A was entitled to cover:"Injury" is used in the Act as referring to physical harm; not in the lawyer's sense of legal wrong .[51] The Judge did not consider there was an "accident" because (at [59]):The scheme of the ACC legislation does not extend to failure of implants or surgery to achieve their goals. On the contrary with its concepts of "medical misadventure" Parliament has codified and limited the extent to which ACC cover will be provided in relation to such events.[52] In terms of the medical misadventure aspect, the Judge said that if there was a failure to obtain informed consent, there was cover: at [61]. [53] Finally, for completeness we note that in both the United Kingdom and in Australia, recovery is possible at common law for damages for the pain and suffering of childbirth following a failed sterilisation. However, in the United Kingdom the costs of raising a healthy child are not recoverable but those costs are recoverable in Australia: contrast McFarlane v Tayside Health Board [2000] 2 AC 59 (HL) andCattanach v Melchior (2003) 215 CLR 1. The effect of Rees v Darlington Memorial Hospital NHS Trust [2004] 1 AC 309 (HL) is that a fixed sum of £15,000is payable to reflect the denial of the parents' right to limit the size of their family. The contrasting positions and the legislative response at state level in Australia are discussed in more detail in Todd (gen ed) The Law of Torts in New Zealand (4ed 2005) at [6.9.02] and see also Manning "Civil Proceedings in Personal Injury Cases" at [25.11].Discussion[54] Drawing these various threads together, we have not found this an easy question to resolve but, for the reasons which follow, we have concluded that unwanted pregnancy is not a "personal injury" under the 2001 Act because it is not a physical injury. [55] In our view, the ordinary and natural use of the term "personal injury" and of "physical injury" in the 2001 Act does not encompass pregnancy even if unwanted. Rather, as the Corporation contends, those phrases suggest a need for harm or damage. That approach was discussed with approval by Wild J in Teen v Accident Rehabilitation and Compensation Insurance Corporation HC WN CIV 2003-485- 1478 11 November 2003 at [35] – [37]. We consider that the approach advanced by the Corporation also fits better with the consistent exclusion of various gradual processes under the differing accident compensation regimes. The latter point, we accept, is not determinative in that, as William Young P notes, a disease is a "natural" event yet can qualify as physical injury. In discussing this point, Todd "The Court of Appeal, Accident Compensation, and Tort Litigation" in Bigwood (ed) The Permanent New Zealand Court of Appeal: Essays on the First Fifty Years(2009) chapter 5 (forthcoming) also states that, "[t]he difference is that pregnancy, unlike disease, is not pathological". [56] The second respondent relies in this context on Elias CJ's observation inHarrild v Director of Proceedings [2003] 3 NZLR 289 at [20] (CA). In that case, this Court dealt with whether a mother had suffered personal injury on account of the death of her foetus. Elias CJ concluded that the mother suffers a personal injury in the loss of the foetus in utero within the meaning of the Act. The passage relied on by the second respondent arose as part of Elias CJ's consideration of the connectionbetween foetus and mother. The Chief Justice said that the "impact" (birth or death) is "of more significance than the 'sprain' or 'strain' given as examples of physical injuries in s 26(1)(b)": at [20]. [57] However, while the impact on the mother in this case is not in issue that is, in our view, a different point. [58] Both respondents also stress the general proposition in Harrild that the legislative policy is "not to be undermined by an ungenerous or niggardly approach to the scope of the cover provided": per Elias CJ at [19]; see also Keith J at [39]; and McGrath J at [130]. [59] The reference to avoiding an ungenerous interpretation came from Richardson J in Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 at 438 – 439 (CA). Keith J at [39] acknowledged that since Richardson J adopted that approach:[T]he coverage of the legislation has been more precisely defined and in some respects narrowed (for instance with the introduction of the medical misadventure and mishap limits) .[60] With one possible exception, the exclusion from coverage of mental injury in the 1992 amendments, Keith J did not see those changes as affecting the position inHarrild: at [39] and [40]. [61] In terms of the approach to be taken to the 2001 statute, the appellant and the respondents take differing views. The appellant says that because pregnancy is now no longer specifically included, there is no cover for pregnancy. The respondents contend that, absent an express exclusion, there is cover for pregnancy. [62] The legislative history, although not conclusive, supports the appellant's view. In particular, it is plain that the 1992 legislation was intended to narrow cover and reduce the "elasticity" of the previous regime: Palmer "New Zealand's Accident Compensation Scheme: Twenty Years On" (1994) 44 UTLJ 223 at 241 – 242; and see: Harrison Matters of Life and Death: The Accident Rehabilitation and Compensation Insurance Act 1992 and Common Law Claims for Personal Injury(Legal Research Foundation Publication No 35 1993) at 4 – 5 and 17 – 18. Further, as we have recounted, the approach to pregnancy and victims of crime was raised by the Otago District Law Society's submission on the 1992 bill and no change was made to reflect that concern. We add that when the express reference to pregnancy was removed, the legislature did not then take any step to overcome the hesitation expressed by Cooke J in L v M. [63] It also appears that the concern in terms of the interrelationship between rape and pregnancy was at cover for mental injury. It seems reasonable to assume that it was considered that the costs associated with the physical aspect, ie any resultant pregnancy, would be met from other sources, for example, under social welfare regimes. [64] Mallon J in adopting the "interference with bodily integrity" approach has drawn on the discussion in Patient A. As we have noted, Baragwanath J in that case relied on Green v Matheson. The relevant passage of this Court's decision inGreen v Matheson is at 572 and is in the following terms:Here the consequences pleaded for the plaintiff include "interference with her bodily integrity", "diminished life expectancy" and "being made the subject of research and experimentation without her knowledge or consent". If there was a personal injury by accident or a number of personal injuries by accident within the meaning of the Act, we think that any of those pleaded consequences must be within the words "The physical and mental consequences of any such injury or of the accident", giving those words their natural and ordinary meaning in their context. The words are all-embracing as regards effects on the person. Whether there has been a personal injury by accident must be judged from the point of view of the victim: G v Auckland Hospital Board [1976] 1 NZLR 638 [(SC)];Donselaar [v Donselaar [1982] 1 NZLR 97 (CA)] at p 104; and [Auckland City Council v] Blundell [[1986] 1 NZLR 732 (CA)] at p 737. In our view everything for which the plaintiff in this case sues falls within the concept illustrated by those cases, even without the express reference in the Act of "medical misadventure". The express references to medical and the like misadventure were added by the Accident Compensation Amendment Act 1974 which came into force in 1975 and also made various other amendments not relevant to this case. In relation to the kind of misadventure alleged to have occurred in this case, we regard the Amendment Act as declaratory of what had always implicit in the concept of "personal injury by accident". That concept in its natural and ordinary sense is well capable of applying to any adverse consequences to a patient's health caused by wrong medical treatment.[65] However, as Mr Corkill QC for the Corporation submits, those observations have to be seen in context. First, the Court was there dealing with the 1982 Act and so with what Cooke J described in that case at 571 as the "non-exhaustive" form ofdefinition of "personal injury by accident". Second, the Court was considering whether the plaintiff's (respondent's) claims which arose out of the cervical cancer inquiry at National Women's Hospital were barred by the 1982 Act. The passage we have cited was addressing the question of whether all of the pleaded consequences came within the statutory phrase. We do not read this excerpt as standing for any broader proposition applicable to the 2001 Act. [66] We also consider there is some force in the Corporation's submission that the Judge's approach in this case may have wider consequences for the legislation and in particular has the potential to introduce a more subjective approach to determining what is a personal injury. The first respondent counters this argument by reference to this Court's statement in Childs v Hillock [1994] 2 NZLR 65 at 70 that whether there has been a personal injury by accident must be judged from the point of view of the victim. That proposition was drawn from Green v Matheson at 572. It is however apparent from the reliance in Green v Matheson on G v Auckland Hospital Board [1976] 1 NZLR 638 at 641 (SC) that the point is to deflect the suggestion that an inquiry has to be made into the state of mind of the person who caused the injury. [67] As we have noted, Mallon J also saw the cases from Australia and the United Kingdom as illustrating that "pregnancy" can be described as an injury. The Judge referred to Kirby J in Cattanach v Melchior at [148] and [179], Hale LJ in Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266 at [58] (CA), and Lord Steyn in McFarlane at 81. [68] The way the common law has developed may well have some relevance particularly in cases such as this one which is at the boundaries. That relevance would follow on from the "trade-off" reflected by the accident compensation scheme. However, the starting point is the statutory scheme and we consider that scheme does not give cover in this case. We add that the absence of any uniform approach in the overseas jurisdictions as to the nature of the injury for which damages are awarded and as to how pregnancy should be treated illustrates the difficulties in the conceptual analysis required.[69] We accept that there is something odd about the fact that it appears that, on our approach, an unwanted pregnancy would be the only result of medical misadventure for which cover was not available. If medical misadventure had not resulted in any injury, there would not be cover and that is in effect what occurs in the case of a pregnancy, albeit unwanted. Further, there are inevitably oddities in a non-exhaustive scheme that has to draw the line somewhere. There are, of course, inconsistencies under the respondents' approach. For example, there is no cover to a man having a failed vasectomy because there is no personal injury. Finally on this point, there is some force in the observation made at [65] by Glazebrook J, delivering the dissenting judgment of herself and Blanchard J in Harrild, that there may "in most cases be good public policy reasons for not regarding a pregnancy and the delivery of the baby as physical injuries". It is for the legislature to determine where the balance lies. [70] On the respondents' approach it is necessary to deal with what constitutes the injury and arguably the Judge does not fully grapple with this issue. Mallon J refers to the physical impacts of pregnancy but also says at footnote 101 that "[t]he injury begins with conception". One commentator put the difficulties with the approach taken in this way (Tobin "Common Law Actions on the Margin" [2008] NZ L Rev 37 at 51):While this interpretation is sympathetic, there are difficulties with it. It is the birth of the child that is the injury about which the plaintiff is complaining and for which she seeks redress, rather than the physical impact of the pregnancy. A further problem that is not addressed arises out of her Honour's statement in a footnote that describes the injury as a gradual process beginning with conception and continuing throughout pregnancy. If that is so, then her Honour needed to explain why conception itself could be classified as a physical injury. And if the injury does begin with conception and continues through the pregnancy until the child is born, then it is difficult to see why other unplanned pregnancies do not fall within the definition .[71] On the latter point, there is some merit in Mr Waalkens QC's submission that these things can "take their flavour" as physical injuries by reference to their cause. The issues do then, however, quickly become very complex. [72] The other alternative is that the injury occurs with the addition of the Filshie clip in the tubal ligation operation but that in itself is not the complaint, rather, it is the resultant pregnancy.Result and costs[73] For these reasons, the answer to the case stated is "yes". The Corporation did not seek costs and we make no order for costs.WILLIAM YOUNG P[74] I have reached a view which differs from that favoured by Arnold and Ellen France JJ. But because of the comprehensive nature of the majority judgment, I can express my reasons succinctly. [75] D's entitlement to cover depends upon whether her pregnancy and the later birth of her child is within the concept of "physical injuries" within the meaning of s 26(1)(b) of the Act and, either: (a) "personal injury caused by medical misadventure suffered by the person" (s 20(2)(b)); or (b) "personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person" (s 20(2)(f)). I am not sure that there is any practical difference between s 20(2)(b) and (f). [76] "Personal injury caused by medical misadventure" is relevantly defined in s 32 in this way:32 Personal injury caused by medical misadventure(1) Personal injury caused by medical misadventure means personal injury that— (a) is suffered by the person seeking or receiving treatment given by or at the direction of a registered health professional ; and (b) is caused by medical error or medical mishap.[77] It will be noted that the relevant definitions of "personal injury" in ss 20(2)(b), (c) and (f) and s 32 all incorporate the expression "personal injury", a circularity of language which I find confusing. The expression "personal injury" mainly (and especially in the phrase "personal injury by accident") applies to adverse events associated with external trauma. It is, however, clear that it is not so confined. Thus it encompasses the adverse consequences of a "work-related gradual process, disease or infection" (see s 20(2)(e)). And, more importantly in the present context, s 20(2)(f) proceeds on the basis that the consequences of a "gradual process, disease or infection" caused by medical misadventure can be a personal injury. The paradigm case of medical misadventure is a misdiagnosis of cancer which results in a treatable condition becoming untreatable. The progress of the disease is not a "physical injury" or a "personal injury" within the ordinary meaning of those phrases but it is clear nonetheless that cover is available. Unless "personal injury" and "physical injuries" are treated as encompassing the usual adverse consequences of medical misadventure, the scheme of the Act is subverted. [78] In this context – where causation is so significant – I see the expressions "personal injury", "physical injuries" and "gradual process" as sufficiently broad to encompass unwanted pregnancy which results from medical misadventure. Further, I do not see my approach as inconsistent with the rather confused legislative history, which is carefully reviewed in the majority judgment. A tenable explanation of that legislative history is that the legislature in effect internalised Cooke J's conclusion inL v M [1979] 2 NZLR 519 (CA) rather than his reasons and acted on the assumption that an unwanted pregnancy resulting from a compensatable cause (ie non- consensual sex or medical misadventure) was within the rather awkward definitions of personal injury by accident that were adopted after L v M. [79] For those reasons, I would dismiss the appeal.Solicitors: Waihere Hope, Hamilton for First Respondent Fisher Lamberg, Auckland for Second Respondent