ACCIDENT COMPENSATION CORPORATION v CALVER [2019] NZHC 2667

ACCIDENT COMPENSATION CORPORATION v CALVER [2019] NZHC 2667 [18 October 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV 2018-485-951[2019] NZHC 2667IN THE MATTER OF an application for leave to appeal to theCourt of Appeal pursuant to s 163 of theAccident Compensation Act 2001BETWEEN ACCIDENT COMPENSATIONCORPORATIONApplicantAND ANGELA CHRISTINE CALVER asexecutrix and trustee of the ESTATE OFDEANNA TREVARTHENRespondentHearing: 18 October 2019Counsel: P J Radich QC for ApplicantB H Woodhouse and T W R Lynskey for RespondentJudgment: 18 October 2019ORAL JUDGMENT OF MALLON J(Leave to appeal)[1] Deanna Trevarthen contracted mesothelioma, a fatal cancer caused byexposure to asbestos, and subsequently died. Before she died, she sought ACC cover,which would have given her a range of entitlements.1 Her claim for cover wasdeclined and ultimately the matter came before this Court in the form of questions oflaw for determination.1 The cover was sought under the Accident Compensation Act 2001.[2] One the questions of law was whether "mesothelioma, not caused by work-related exposure to asbestos, amounts to a "personal injury" under s 26 of the Act".2 Ianswered that question "Yes".3 In answering that question I concluded thatMs Trevarthen's mesothelioma was a personal injury caused by an accident and thismeant she was entitled to cover.4[3] ACC seeks leave to appeal my decision.5 It considers that all diseases,however caused, are excluded by the Act unless they are within s 26(2)(g). It considersthe effect of my decision is that all diseases are included provided they are caused inone of the ways specified in s 20(2). It regards this as contrary to Parliament'sintention to exclude diseases under s 26(2) and potentially to deprive s 20(2)(g) of anyfunction at all. It regards my conclusion as resting on an at least extended and arguablyerroneous view of what was decided by the Supreme Court in Allenby v H.6[4] The extent and route by which diseases may be covered under the AccidentCompensation Act 2001 is an important one. It is also not a straightforward one. Ofthis Act, as it stood in 2004 (then called the Injury Prevention, Rehabilitation, andCompensation Act 2001), it was said in Allenby: "Nor is this easy legislation to follow.It contains much cross-referencing, repetition, and circularity in expression".7Whether a disease such as mesothelioma, which develops from an external accidentalcause, is covered by the 2001 Act had not been considered by the High Court beforemy decision. It has not been considered by the Court of Appeal before. The SupremeCourt's decision in Allenby, from which I drew support for my conclusion, concernedwhether pregnancy following a failed sterilisation constituted a personal injury causedby medical misadventure so as to have cover under the Act. It did not therefore directlyengage the situation that was before me. In these circumstances I accept the appealraises a question of law capable of bona fide and serious argument.82 Calver v Accident Compensation Corporation [2019] NZHC 1581 at [5(a)].3 At [6].4 At [6] and [140].5 Accident Compensation Act 2011, s 163.6 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 (SC).7 At [7] per Elias CJ. See also at [68] per Blanchard J (with McGrath and William Young JJagreeing).8 Refer Wildbore v Accident Compensation Corporation HC Wellington CIV-2007-485-496, 9 April2008 at [7] and [9] setting out the approach to when leave should be granted.[5] Mesothelioma is covered by ACC if it is work-related. The number of peoplein New Zealand who have or will contract mesothelioma outside of their work, asMs Trevarthen did, is likely to be few.9 However, I accept that my decision may haveimplications for ACC beyond Ms Trevarthen's claim. Therefore, although Iacknowledge it has been a long time already for Ms Trevarthen's claim for cover tobe finally determined, I am satisfied the appeal is of sufficient importance to outweighthe cost and delay of a further appeal.[6] I therefore consider that leave to appeal should be granted. I consider thequestion of law on which leave should be granted is that which I was asked as set outin [2] above. That this is the appropriate question is agreed by the parties.[7] If ultimately, following a final determination of this matter, there is any issueas to costs, the parties have leave to file brief submissions promptly following thatfinal determination.Mallon J9 Calver v Accident Compensation Corporation, above n 2, at [1]. The "small but significant group"includes those who contract the disease from workplace exposure.