ACCIDENT COMPENSATION CORPORATION v AZ [2023] NZCA 617

ACCIDENT COMPENSATION CORPORATION v AZ [2023] NZCA 617 [6 December 2023]ORDER PROHIBITING PUBLICATION OF THE NAMES, ADDRESSES ORIDENTIFYING PARTICULARS OF THE MEDICALPRACTITIONERS/RADIOLOGIST AND THE NAME OF THE MEDICALCENTRE CONCERNED.NOTE: DISTRICT COURT ORDER PURSUANT TO S 160(1) OF THEACCIDENT COMPENSATION ACT FORBIDDING PUBLICATION OF THENAME, ADDRESS AND/OR ANY PARTICULARS LIKELY TO LEAD TO THEIDENTIFICATION OF THE RESPONDENT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA736/2021[2023] NZCA 617BETWEEN ACCIDENT COMPENSATIONCORPORATIONAppellantAND AZRespondentHearing: 16 March 2023Court: Cooper P, Collins and Mallon JJCounsel: D A Laurenson KC and S L K Shaw for AppellantP G Schmidt and H J Peart for RespondentA H Waalkens KC and S R Courtney for IntervenerJudgment: 6 December 2023 at 9.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B We answer the question of law as follows:Can a person born with spina bifida (claimant) obtain cover fortreatment injury where:(a) the existence of the claimant's spina bifida was not, butshould have been, detected at the 20-week scan stage;(b) had the spina bifida been detected, the claimant's motherwould have elected termination; and(c) the misdiagnosis meant that the opportunity to electtermination was lost to the claimant's mother?Yes.C There is no order for costs.D We make an order permanently prohibiting publication of the names,addresses or identifying particulars of the medical practitioner/radiologistand the name of the medical centre concerned.____________________________________________________________________REASONSCooper P and Collins J [1]Mallon J [96]COOPER P AND COLLINS JIntroduction[1] AZ, who is now 20 years old, developed spina bifida in utero at approximatelyfive weeks' gestation. AZ's mother underwent a 20-week ultrasound scan when shewas almost 20 weeks pregnant. The spina bifida should have been detected by thehealth professional who read the scan. Unfortunately, the scan was misread and, as aconsequence, AZ's spina bifida was not detected before she was born. AZ was bornwith spina bifida and several other related health conditions.[2] At the time AZ's mother was pregnant, spina bifida could not be treated inutero. The options available to a mother whose unborn child was diagnosed with spinabifida were either to continue with the pregnancy or seek a termination. It is anaccepted fact that had AZ's mother been informed the foetus had spina bifida, shewould have sought and obtained a lawful termination of her pregnancy when she wasabout 20 weeks pregnant.[3] AZ's mother qualified for cover under the Accident Compensation Act 2001(the Act) for the period from the misdiagnosis of the 20-week scan until AZ's birth.[4] In June 2019, a claim was made to the Accident Compensation Corporation(ACC) on behalf of AZ. It was contended AZ was entitled to cover in her own rightfor personal injury and to entitlements provided for under s 69 of the Act.In August 2019, ACC declined to accept AZ had cover. That decision was upheld onreview and again on appeal to the District Court.1 An appeal was then brought onbehalf of AZ to the High Court on an agreed question of law:Can a person born with spina bifida (claimant) obtain cover for treatmentinjury where:(a) the existence of the claimant's spina bifida was not, but should havebeen, detected at the 20-week scan stage;(b) had the spina bifida been detected, the claimant's mother would haveelected termination; and(c) the misdiagnosis meant that the opportunity to elect termination waslost to the claimant's mother?[5] In the High Court, van Bohemen J concluded AZ had cover.2 The High Courtgranted leave for ACC to appeal on a question of law pursuant to s 163(1) of the Act.3The question posed for our consideration is the same question that was addressed bythe High Court.4[6] For the reasons that follow we dismiss the appeal. In her concurring judgmentMallon J expresses similar conclusions, but with different emphases.1 AZ v Accident Compensation Corporation [2021] NZACC 45 [District Court judgment] at [46].2 AZ v Accident Compensation Corporation [2021] NZHC 2752, [2021] 3 NZLR 791 [High Courtjudgment] at [128].3 AZ v Accident Compensation Corporation HC Auckland CIV-2021-404-975, 18 November 2021[High Court leave decision] at [8].4 At [7].Key legislative provisionsStatutory purpose[7] The purpose of the Act is:5 to enhance the public good and reinforce the social contract represented bythe first accident compensation scheme by providing for a fair and sustainablescheme for managing personal injury that has, as its overriding goals,minimising both the overall incidence of injury in the community, and theimpact of injury on the community (including economic, social, and personalcosts), Personal injury[8] A prerequisite to obtaining cover under the Act is that the claimant must havesuffered a personal injury as defined in the Act.6[9] "Personal injury" is defined in broad terms in s 26(1) of the Act:(1) Personal injury means—(a) the death of a person; or(b) physical injuries suffered by a person, including, for example,a strain or a sprain; or(c) mental injury suffered by a person because of physicalinjuries suffered by the person; or(d) mental injury suffered by a person in the circumstancesdescribed in section 21; or(da) work-related mental injury that is suffered by a person in thecircumstances described in section 21B; or(e) damage (other than wear and tear) to dentures or prosthesesthat replace a part of the human body.[10] In this case we need only consider the definition of personal injury set out ins 26(1)(b) of the Act: "physical injuries suffered by a person".5 Accident Compensation Act 2001, s 3.6 Section 20(1).[11] Section 26(2) expressly provides that the definition of personal injury excludes"personal injury caused wholly or substantially by a gradual process, disease, orinfection unless it is personal injury of a kind described in section 20(2)(e) to (h)".[12] Section 20(2) identifies 10 categories of personal injury, saliently including:(b) personal injury that is treatment injury suffered by the person:(f) personal injury caused by a gradual process, disease, or infection thatis treatment injury suffered by the person:Treatment injury[13] "Treatment injury" is defined in s 32(1). For convenience we will set out onlythe relevant portions of the definition:(1) Treatment injury means personal injury that is—(a) suffered by a person—(i) seeking treatment from 1 or more registered healthprofessionals; or(ii) receiving treatment from, or at the direction of, 1 ormore registered health professionals; or and(b) caused by treatment; and(c) not a necessary part, or ordinary consequence, of thetreatment, taking into account all the circumstances of thetreatment, including—(i) the person's underlying health condition at the timeof the treatment; and(ii) the clinical knowledge at the time of the treatment.(2) Treatment injury does not include the following kinds of personalinjury:(a) personal injury that is wholly or substantially caused by aperson's underlying health condition:(3) The fact that the treatment did not achieve a desired result does not,of itself, constitute treatment injury.(4) Treatment injury includes personal injury suffered by a person as aresult of treatment given as part of a clinical trial, in the circumstancesdescribed in subsection (5) or subsection (6).[14] As can be seen, treatment injury is defined in s 32(1) as including personalinjury that is suffered by a person receiving treatment,7 and is "caused by treatment".8We note also that s 32(2)(a) explicitly excludes "personal injury that is wholly orsubstantially caused by a person's underlying health condition".[15] Under s 33(1) of the Act, "treatment" includes:(a) the giving of treatment:(b) a diagnosis of a person's medical condition:(d) a failure to provide treatment, or to provide treatment in a timelymanner:High Court judgment[16] In his judgment, van Bohemen J derived support from the Supreme Court'sjudgment in Allenby v H,9 and the decision of this Court in Cumberland v AccidentCompensation Corporation,10 when he concluded that AZ has cover under theprovisions of the Act we have set out above at [7]–[15].117 Section 32(1)(a)(ii).8 Section 32(1)(b).9 Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425.10 Cumberland v Accident Compensation Corporation [2013] NZCA 590, [2014] 2 NZLR 373.11 High Court judgment, above n 2, at [128].[17] In Allenby, the Court held that a woman who had become pregnant after a failedsterilisation procedure had cover under the Act for the duration of her pregnancy.The Court explained that the physical changes caused to a woman's body bypregnancy were physical injuries.12 Where pregnancy followed a failed medicalprocedure designed to prevent impregnation, the pregnancy was personal injury to themother caused by medical error for which the mother had cover under the Act.13[18] The claim in Cumberland was identical to the claim for cover by AZ's motherwhich we referred to at [3]. In Cumberland, a scan conducted at 20 weeks' gestationwas misread and the foetus' spina bifida not diagnosed. The pregnancy continued.This Court held the mother had cover for the period during which the pregnancycontinued after the misdiagnosis.14[19] Justice van Bohemen relied on the reasoning in Allenby and Cumberland, tosupport his conclusion that "the continued development" of AZ's spina bifida was"physical injury to the child once born", being very similar to the case of an undetectedtumour.15 The Judge was satisfied that AZ's spina bifida was a personal injury coveredby a gradual process, disease, or infection that was treatment injury under s 20(2)(f)of the Act.16[20] The Judge's conclusion was substantially based on the following propositions:(a) from the perspective of AZ, the physical consequence of thecontinuation of the pregnancy was the continued development of thespina bifida;17 and12 Allenby, above n 9, at [18]–[19] and [23] per Elias CJ, [72] per Blanchard, McGrath andWilliam Young JJ and [88] per Tipping J.13 At [26] and [29] per Elias CJ, [76] and [80] per Blanchard, McGrath and William Young JJ and[86] and [88] per Tipping J.14 Cumberland, above n 10, at [34]–[35].15 High Court judgment, above n 2, at [56]–[57].16 At [60]–[61].17 At [56].(b) the continued development of spina bifida as a consequence of thecontinued pregnancy following the misdiagnosis at 20 weeks' gestationwas a physical injury to AZ when she was born.18AnalysisApproach to interpretation[21] Orthodox principles of statutory interpretation require us to ascertain themeaning of the relevant provisions of the Act by reference to the text, purpose andcontext of the provisions in issue.19 However, the purpose of the Act, which we haveset out at [7], reinforces the appropriateness of erring on the side of allowing cover inmarginal cases unless plainly excluded.20The issues[22] Assessment of the statutory scheme illustrates that cover in the case of AZ turnson whether:(a) she is a person who suffered personal injury;(b) she was receiving treatment; and(c) the personal injury was caused by treatment.[23] In order for AZ's spina bifida to be a qualifying personal injury, it must not fallwithin the specific exclusions made by the Act. Careful investigation is required into18 At [57].19 Legislation Act 2019, s 10(1).20 This approach has been referred to as a generous and unniggardly interpretation.See Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 (CA) at 438per Richardson J; Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) at [19], [39] and[130]; and Roper v Taylor [2023] NZSC 49, [2023] 1 NZLR 1 at [94] and [102]–[103].whether her spina bifida is a personal injury excluded by s 26(2) or by s 32(2).Two inquiries are required:(a) whether the continuation of AZ's spina bifida following themisdiagnosis of the 20-week scan was caused wholly or substantiallyby a gradual process, disease or infection; and(b) whether, in any event, AZ's continuing spina bifida after themisdiagnosis of the 20-week scan was "personal injury caused by agradual process, disease, or infection that is treatment injury sufferedby the person".21[24] We will address both inquiries under the topic of causation.[25] If it is found that AZ's continuing spina bifida was caused wholly orsubstantially by a gradual process, disease or infection, then cover may be excludedunder s 26(2). That is so unless that gradual process, disease or infection is found tobe a treatment injury under s 20(2)(f).22 In this way, s 20(2)(f) overrides the exclusioncontained in s 26(2). The comments of Mallon J in Accident CompensationCorporation v D, adopted by Elias CJ in Allenby,23 discuss the exclusions of "gradualprocess" from treatment injury. Not all injuries caused by gradual process areexcluded necessarily; the focus is on causation:24[79] The exclusion is not for natural processes per se. It is for gradualprocesses that are not of a certain kind. The focus is on the cause of the gradualprocess. Relevant for present purposes is that personal injury caused whollyor substantially by a gradual process is covered if the personal injury is causedby medical misadventure. [26] As will become apparent, the task of interpreting the relevant provisions of theAct and applying those provisions to AZ's case is not a straightforward exercise.This is because there is circularity in the key legislative provisions because of the way21 Accident Compensation Act, s 20(2)(f).22 Section 26(2) provides that gradual processes, diseases and infections captured by s 20(2)(e) and(g) are also qualifying personal injuries, but those paragraphs are not relevant to this proceeding.23 Allenby, above n 9, at [27] per Elias CJ citing Accident Compensation Corporation v D [2007]NZAR 679 (HC) at [77]–[79].24 Accident Compensation Corporation v D, above n 23.the exclusions in ss 26(2) and 32(2)(a) are countermanded by the extended definitionof personal injury in s 20(2)(f) of the Act. As a consequence, the issues we have toexamine under the heading of causation require us to revisit the meaning of personalinjury.[27] The statutory interpretation exercise is also clouded by a paradox, namely thatto succeed AZ must demonstrate that she suffered a treatment injury when her motherwas denied the opportunity to terminate her pregnancy which, if given, would haveprevented AZ from being born.Structure of the balance of this judgment[28] We will approach our task in the following way:(a) We will first deal with a preliminary point, namely the status of a foetusunder the Act and, contingently, whether a foetus is capable of receivingtreatment.(b) We will then examine:(i) the meaning of personal injury;(ii) the meaning of treatment and treatment injury;(iii) the misdiagnosis in this case; and(iv) causation.(c) Finally, we will analyse whether or not AZ has cover under eithers 20(2)(b) or s 20(2)(f) of the Act.Status of a foetus in relation to treatment[29] Each of the sections we have examined above refers either to treatment of a"person" or personal injury suffered by a "person". ACC accepts that if AZ suffereda treatment injury at 20 weeks' gestation she would qualify for cover under the Actonce born. This is because, in Harrild v Director of Proceedings, McGrath J held theterm "person" used throughout the Act does not include a foetus, unless and until it isborn alive.25 This has been affirmed in decisions following Harrild, and is referred toas the "born alive" principle: once born alive, a person may be eligible for cover forpersonal injuries suffered in utero.26[30] Despite lacking legal personality until birth, a foetus is able to receive medicaltreatment, for example, by way of endoscopic foetal surgery. Such proceduresconstitute treatment for the purposes of the Act. A foetus that is harmed by medicaltreatment received in utero will, once born, live with the effects of an injury sustainedfrom that medical treatment or lack thereof, and will consequently be entitled to coverunder the Act.[31] We therefore proceed on the basis that although the personal injury thatunderpins AZ's claim arose in utero, once she was born alive, she became "a person"and is entitled to cover provided her spina bifida was a personal injury caused by atreatment injury and regardless of the fact the injury in issue occurred before AZbecame a person.Personal injury[32] There are two aspects to AZ's claim that engage the question as to whether ornot her spina bifida is personal injury under s 26(1)(b) of the Act:(a) first, whether spina bifida per se is personal injury; and(b) second, whether spina bifida is excluded from the definition of personalinjury on the basis that it is caused "wholly or substantially by a gradualprocess, disease, or infection"27 and if so, whether spina bifida isnevertheless personal injury by reason of s 20(2)(f) of the Act.25 Harrild v Director of Proceedings, above n 20, at [134] per McGrath J.26 See for example Sam v Accident Compensation Corporation [2009] 1 NZLR 132 (HC) at [38]–[42]; and Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 276,[2012] 1 NZLR 176 at [59].27 Accident Compensation Act, s 26(2).[33] As noted above, these are two closely interlinked inquiries. The secondquestion is best dealt with when assessing causation and requires us to revisit the issueof whether or not AZ has suffered personal injury for the purposes of the Act.[34] Spina bifida occurs when the spine of a foetus fails to develop properly duringthe early stages of pregnancy. Spina bifida causes physical defects in the spine as itdevelops in utero so that, when born, a baby with spina bifida has an abnormal spine.The spinal defects associated with spina bifida satisfy the natural and ordinarymeaning of the term physical injury. This conclusion is reinforced by the fact thatspina bifida has a far greater physical impact on the sufferer than "a strain or a sprain"which are given as examples of physical injury in s 26(1)(b) of the Act. If a strain orsprain qualifies as physical injury then, logically, spina bifida must also be regardedas a physical injury.[35] Spina bifida satisfies the definition of personal injury in s 26(1)(b) of the Act.Treatment injury[36] AZ's spina bifida must also meet one of the criteria in s 20(2)(b) or (f). This inturn requires us to decide whether or not the failure to properly read the 20-week scan,thereby denying AZ's mother the opportunity to terminate her pregnancy, constitutedtreatment injury to AZ. This requires examination of the meanings of the terms"treatment" and "treatment injury" under the Act.Definition of treatment[37] We are satisfied that the terms "treatment" and "treatment injury" in ss 32 and33 of the Act are broader than the traditional curative-focused definitions of treatmentrelied upon by ACC. This conclusion follows from our assessment of the definitionof treatment under the Act in light of a number of considerations:(a) the legislative text;(b) the legislative context;(c) the purpose of the accident compensation scheme including theavoidance of personal injury litigation;(d) the internal statutory context;(e) the applicability of the treatment injury regime to medical proceduresending life;(f) current expressions of the obligations of medical practitioners; and(g) the right of a mother to elect termination.(a) The legislative text[38] There is no prescriptive definition of "treatment" in the Act. Section 33(1) setsan expansive list of acts or omissions that may constitute treatment. The list isprovided "[f]or the purposes of determining whether a treatment injury has occurred,or when that injury occurred".28[39] The list is not exhaustive: it is expressly said to be inclusive.29 The examplesof treatment set out are cast broadly. Section 33(2) confirms that s 33(1) does notaffect the application of the definition of treatment in s 6(1) for purposes other thanthose stated in s 33(1). Read together, s 33(1) and (2) provide for an expansive conceptof treatment.[40] The Review Authority and the District Court referred to a definition oftreatment found in Dorland's Illustrated Medical Dictionary, which defines treatmentas "the management and care of a patient for the purpose of combating [a] disease ordisorder".30 A similar definition is contained in Taber's Cyclopedic MedicalDictionary.31 In an article discussing this case, Professor Stephen Todd referred to28 Section 33(1).29 Section 33(1).30 District Court judgment, above n 1, at [41] citing Newman Dorland Dorland's Illustrated MedicalDictionary (32nd ed, Elsevier, Philadelphia, 2011) at 1957.31 Donald Venes (ed) Taber's Cyclopedic Medical Dictionary (2013, 22nd ed, FA Davis Company,Philadelphia) at 2371.what he suggests is a definition of treatment set out in the Oxford Dictionary as"medical care given to a patient for an illness or injury".32[41] Reliance on definitions in dictionaries, whether general or specialised, ignoresnuances which are inherent in reading coherently a complicated statutory scheme.Judge Learned Hand famously cautioned against "mak[ing] a fortress out of thedictionary".33 It is trite that a court's interpretive task is not accomplished bysurveying dictionary definitions and choosing that which seems most apt.34Rather, the meaning of words found in statutory provisions must be ascertained fromthe text in light of its purpose and context.35[42] In New Health New Zealand Inc v South Taranaki District Council, O'Reganand Ellen France JJ found dictionary definitions did "not necessarily" assist ininterpreting the word "treatment" as it appears in s 11 of the New Zealand Bill ofRights Act 1990.36 Rather, the appropriate interpretive exercise was purposive, andrequired regard to the specific words in the Act.37[43] Interpreting the meaning of "treatment" under the Accident Compensation Actis no different; our reading must be informed by the scheme of the Act.32 Stephen Todd "Negligence by IVF providers: injury on being born?" (2023) JRSNZ at 5. We havenot been able to find this definition in any version of the Oxford English Dictionaries, although asimilar definition can be found on Google, supplied by Oxford Languages.33 Cabell v Markham 148 F 2d 737 (2d Cir 1945) at 739.34 South Western Sydney Local Health District v Gould [2018] NSWCA 69, (2018) 97 NSWLR 513at [77]–[83].35 Legislation Act, s 10(1).36 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR948 at [74] per Ellen France and O'Regan JJ.37 At [74], [77] and [90] per Ellen France and O'Regan JJ. Elias CJ agreed with Ellen France andO'Regan JJ that water fluoridation constituted medical treatment, holding there were no textual orpurposive justifications to restrict or read down the definition of "treatment" as it appeared in thatstatute: at [212] and [228] per Elias CJ. Glazebrook J agreed with the reasons for Elias CJ andEllen France and O'Regan JJ on this point: at [172] per Glazebrook J. William Young J dissentedon the question of whether s 11 was engaged by the fluoridation of drinking water, but agreed thelegislative background meant the word "treatment" as it appeared in s 11 should be construedbroadly, and that the interpretive exercise required having regard to the particular words used ins 11: see [178] and [182]–[184] per William Young J dissenting.(b) Legislative context: the policy underpinning the definition of "treatmentinjury"[44] The definition of "personal injury by accident" in the Accident CompensationAct 1972 was particularly broad.38 Before the accident compensation scheme cameinto force on 1 April 1974, the definition of "personal injury by accident" wasrefined.39 The definition of "personal injury by accident" in the legislation providedin part:'Personal injury by accident'—(a) Includes—(i) The physical and mental consequences of any suchinjury or of the accident:(ii) Medical, surgical, dental, or first aid misadventure:Excluded from the 1974 definition of "personal injury accident" was "[d]amage to thebody or mind caused exclusively by disease, infection, or the ageing process".40These parts of the definition of "personal injury by accident" were carried into theAccident Compensation Act 1982.41 In Green v Matheson, this Court held that thedefinition of "personal injury by accident" in the 1982 Act encompassed physical andmental harm arising from the plaintiff's unwitting participation in medical researchwithout her consent.42[45] Concerns that the earlier definitions of "personal injury by accident" riskedundermining the financial viability of the accident compensation scheme led to thepassing of the Accident Rehabilitation and Compensation Insurance Act 1992.43That Act provided cover for medical misadventure, which was defined by reference topersonal injury resulting from medical error or medical mishap. The definition of38 Accident Compensation Act 1972, s 2(1) definition of "[p]ersonal injury by accident", underwhich the expression was defined as including "incapacity resulting from an occupational diseaseto the extent that cover extends in respect of the disease under sections 65 to 68 of this Act".39 Accident Compensation Amendment Act 1974, s 2(1).40 Section 2(1).41 Accident Compensation Act 1982, s 2(1) definition of "[p]ersonal injury by accident".42 Green v Matheson [1989] 3 NZLR 564 (CA) at 571–573.43 WF Birch Accident Compensation: A Fairer Scheme (Department of Labour, Wellington, 31 July1991) at 7–9."medical error" equated to negligence by a registered health professional."Medical mishap" was defined by reference to the rarity and the severity of thepersonal injury in issue.44 The 1992 version of the accident compensation scheme wasdesigned to significantly reduce coverage for untoward medical events compared toprevious iterations of the scheme. The essence of the medical misadventure provisionsof the 1992 Act, with additional caveats, was subsequently incorporated into theAccident Insurance Act 1998,45 and initially into the Injury Prevention, Rehabilitation,and Compensation Act 2001.46[46] In 2005, Parliament revisited the medical misadventure threshold for cover andreplaced it with cover for treatment injury.47 It has been explained:48 [T]he first aim of the reform was to remove the need for claimants toestablish an individual health professional's "fault" for the purposes of cover.A second and related reason for reform was to improve the timeliness ofdetermining claims arising out of treatment. The third focus was cover formedical mishap, for which the "rarity" and "severity" criteria were confusingand considered too restrictive and arbitrary, resulting in claimants unfairlymissing out on cover.[47] This summary of the way treatment injury came to be incorporated into the Actdemonstrates a deliberate intention by the legislature to expand the circumstanceswhich would attract cover under the Act for untoward medical events.Parliament accepted that the comparatively restrictive cover afforded for medicalmisadventure under the 1992, 1998 and 2001 Acts led to injustices which needed tobe remedied. This was achieved by relaxing the boundaries for cover for personalinjury arising from treatment injury. Parliament has advocated a generous attitude tocover for those who suffer treatment injury. This in turn reinforces the approach tointerpretation we have set out at [21].44 Accident Rehabilitation and Compensation Insurance Act 1992, s 5(1).45 Accident Insurance Act 1998, s 35–37.46 Injury Prevention, Rehabilitation, and Compensation Act 2001, s 32–34.47 Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005, s 13.48 Joanna Manning "Treatment Injury" in Peter Skegg and Ron Paterson (eds) Health Law inNew Zealand (Thomson Reuters, Wellington, 2015) 997 at [31.5.1].(c) The purpose of the accident compensation scheme including the avoidance ofpersonal injury litigation[48] It is important to bear in mind that the purpose of the Act is to reinforce thesocial contract that underpinned the first iteration of the accident compensationscheme.49 That social contract could be found in s 5 of the Accident CompensationAct 1972, which enacted the vision of the Report of the Royal Commission of Inquiryinto Compensation for Personal Injury in New Zealand (1967) (the WoodhouseReport) by abolishing common law claims for personal injury in exchange forcomprehensive no fault cover under the scheme.50[49] Denying AZ cover under the Act risks inviting common law personal injuryclaims being brought by persons in similar circumstances to those faced by AZ. This isbecause the scope of the Act is "coterminous with cover provided under the Act",51meaning that if there is no cover under the Act there is also no bar to a common lawnegligence claim against the relevant medical practitioner.[50] An example of a successful common law claim that is similar to AZ's case isMeadows v Khan,52 a recent decision of the United Kingdom Supreme Court.The appellant in that case was a woman who wanted to determine whether she carriedthe haemophilia gene. She underwent genetic testing directed to whether she hadhaemophilia, but was not informed that she needed further testing to determinewhether she was a genetic carrier. The appellant became pregnant and gave birth to achild with haemophilia and autism, which was unrelated to the haemophilia. If theappellant had been correctly advised to obtain further tests regarding her haemophilia,she would have undertaken those tests which in turn would have revealed she carriedthe haemophilia gene. She would then have known to test her foetus and, on thosetests showing the haemophilia gene was being carried by the foetus, she would haveterminated her pregnancy. The appellant contended she was entitled to damages forthe continuation of the pregnancy and its consequences, including costs associated49 Accident Compensation Act, s 3.50 See AO Woodhouse, HL Bockett and GA Parsons Compensation for Personal Injury inNew Zealand: Report of the Royal Commission of Inquiry (Government Printer, December 1967)[Woodhouse Report].51 Queenstown Lakes District Council v Palmer [1999] 1 NZLR 549 (CA) at 553.52 Meadows v Khan [2021] UKSC 21, [2022] AC 852.with both conditions. The respondent health practitioner contended her liabilityshould be limited to the costs associated with the child's haemophilia.53[51] The Supreme Court held that the health professional who failed to properlyinform the appellant about the genetic tests that were available to her was liable forthe costs associated with the care of the plaintiff's child, insofar as those costs weredirectly attributable to his haemophilia.54 The Court found there was a clear causallink between the negligent failure to properly inform the plaintiff about the genetictests that she should have undertaken, and the birth of her child.55 Further, the healthpractitioner owed the appellant a duty of care to provide her with accurate informationor advice about carrying the haemophilia gene, as that was the purpose for theconsultation. But the practitioner owed no such duty in relation to any unrelated risksthat might arise in the pregnancy. The additional costs associated with raising a childwith haemophilia were therefore recoverable, whereas costs that were associated withthe child being autistic were not.56[52] Meadows reflected earlier decisions of the Court of Appeal of England andWales in which damages were awarded against medical practitioners and healthauthorities whose negligence resulted in the birth of children with disabilities.57[53] The English cases to which we have referred involved claims brought by theparents of children born with disabilities. We appreciate that in McKay v Essex AreaHealth Authority, the Court of Appeal for England and Wales rejected a "wrongfullife" claim by a child born with disabilities caused by rubella suffered by the motherduring pregnancy.58 In those circumstances, it was alleged that the mother, onceinfected with rubella, would have terminated her pregnancy had the infection beenproperly managed by her doctor.53 At [13].54 At [68] per Lord Hodge DP and Lord Sales SCJ (with whom Lord Reed P, Lord Kitchin andLady Black SCJJ agreed), [73(iv)] per Lord Burrows SCJ and [86] per Lord Leggatt SCJ.55 At [64] and [68] per Lord Hodge DP and Lord Sales SCJ, [73(iii)] per Lord Burrows SCJ and [85]per Lord Leggatt SCJ.56 At [65] and [68] per Lord Hodge DP and Lord Sales SCJ, [77] per Lord Burrows SCJ and [92]–[93] per Lord Leggatt SCJ.57 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 560, [2002]QB 266; and Groom v Selby [2001] EWCA Civ 1522, 64 BMLR 47.58 McKay v Essex Area Health Authority [1982] QB 1166 (CA).[54] There are, however, also cases from common law jurisdictions which recogniseclaims brought by children born with disabilities caused by medical negligence.59We accept that wrongful life claims are not widely acknowledged.60 We do not,however, have to consider whether such a claim would be recognised in New Zealand.What we can reasonably say is that inviting civil personal injury claims in cases similarto AZ's is difficult to reconcile with Parliament's intention to abolish personal injuryclaims in order to provide for a fair and sustainable scheme for managing personalinjuries.(d) Internal statutory context[55] The meaning of "treatment" must be considered in light of the Act as a whole.61The internal statutory context of the Act suggests that Parliament intended that"treatment" extend to medical procedures which are not necessarily intended toalleviate a patient's condition.[56] Clause 2 of sch 1 to the 2001 Act sets out the circumstances where ACC isliable to pay the cost of treatment:(1) The Corporation is liable to pay the cost of the claimant's treatment ifthe treatment is for the purpose of restoring the claimant's health tothe maximum extent practicable, and the treatment—(a) is necessary and appropriate, and of the quality required, forthat purpose; and(b) has been, or will be, performed only on the number ofoccasions necessary for that purpose; and(c) has been, or will be, given at a time or place appropriate forthat purpose; and(d) is of a type normally provided by a treatment provider; and59 See for example Curlender v Bio-Science Laboratories 106 Cal App 3d 811 (Cal CA 1980);Turpin v Sortini 643 P 2d 954 (Cal 1982); Harbeson v Parke-Davis, Inc 656 P 2d 483 (Wn 1983);Wuth v Lab Corp of Am 359 P 3d 841 (Wn CA 2015); and Procanik by Procanik v Cillo 543 A 2d985 (NJ Super AD 1988).60 We note that Canadian and Australian jurisprudence does not currently recognise such claims.See for example Florence v Benzaquen 2021 ONCA 523, 462 DLR (4th) 251; and Harriton vStephens [2006] HCA 15, (2006) 226 CLR 52.61 Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington,2015) at 335.(e) is provided by a treatment provider of a type who is qualifiedto provide that treatment and who normally provides thattreatment; and(f) has been provided after the Corporation has agreed to thetreatment, unless clause 4(2) applies.[57] We consider that the qualification that the Corporation is only liable "if thetreatment is for the purpose of restoring the claimant's health to the maximum extentpracticable" implies that in some cases "treatment" encompasses procedures whichare not restorative or curative or at least not completely so. Otherwise cl 2 of sch 1,which serves to reduce the Corporation's liability for treatment, would be redundant.There is a presumption that the drafter has used words consistently throughout theAct.62[58] Further, the text of s 32(4) of the Act recognises that a treatment injury canoccur when a person without any medical condition suffers injury "as a result oftreatment given as part of a clinical trial".63 Clinical trials often involve participantswho volunteer to test new drugs and medical procedures even though they have nomedical condition that requires alleviation. Consequently, a healthy participant whosuffers an adverse reaction during a clinical trial has cover under the Act.64The inclusion of "treatment" given as part of a trial,65 suggests that Parliamentintended that "treatment" include medical procedures which do not, and are notintended to, cure or alleviate a patient's condition.(e) The applicability of the treatment injury regime to medical procedures endinglife[59] Mr Laurenson KC, for ACC, submitted that procedures aimed at the alleviationof suffering were treatment under the Act "to the extent that, when alive, the claimantsuffered an adverse health consequence" from an underlying incurable terminalillness. These procedures are treatment because they have "the purpose of62 Carter, above n 61, at 337 citing New Zealand Breweries Ltd v Auckland City Corp [1952] NZLR144 (CA) at 158 per Adams J; Elders New Zealand Ltd v PGG Wrightson [2008] NZSC 104,[2009] 1 NZLR 577; Ka Hay Yeung v R [2010] NZCA 605 at [24]; and Houghton v Saunders[2014] NZHC 2229, [2015] 2 NZLR 74 at [592]–[593].63 Emphasis added.64 Provided the personal injury is suffered in certain circumstances: Accident Compensation Act,s 32(4)–(6).65 Accident Compensation Act, s 32(4).ameliorating the effects of that condition even for a short time". He argued that therecould be no cover for procedures which ultimately sought to cause death.[60] Medical treatment may, towards the end of a patient's life, lawfully have theeffect of accelerating a patient's death.66 This is justified on the basis that medicationwhich has the effect of accelerating a patient's death is administered to alleviate thepatient's suffering.67 There is ethical opinion which supports this consequence byinvoking the rule of double effect, under which it is reasoned that causing a patient'sdeath is morally justified where the primary aim of medical intervention is to reducesuffering, even in circumstances where it is appreciated that the intervention willhasten the patient's death.68 The enactment of the End of Life Choice Act 2019 alsodemonstrates that medical procedures may have objectives beyond the curative.[61] For the purposes of treatment injury cover, we do not find there is a logicaldistinction between procedures causing injury which are directed to the alleviation ofsuffering in a patient with an incurable illness, and those which are aimed at alleviatingsuffering through ending a life. The administration of "assisted dying" medicationunder s 20 of the End of Life Choice Act is likely to be viewed as treatment eventhough the sole objective of the medical procedure is to end the patient's life.69(f) Current obligations on medical practitioners[62] The Declaration of Geneva, adopted by the General Assembly of the WorldMedical Association at Geneva in 1948, is a physician's declaration to adhere to thehumanitarian goals of medicine, intended as a reformulation of the Hippocratic Oath.66 See Henry Palmer "Dr Adams' Trial for Murder" [1957] Crim LR 365.67 At 375.68 Tom L Beauchamp and James F Childress Principles of Biomedical Ethics (7th ed, OxfordUniversity Press, New York, 2013) at 164–168 and 178.69 Although it would be unusual for an end of life procedure to go wrong thereby triggering a claimunder the Act, there are many reported instances from the United States of "death row" prisonerssuffering from adverse medical events, such as the collapsing of veins, during the intravenousadministration of lethal drugs. In some of those cases, the execution has had to be deferred:see Austin Sarat Gruesome Spectacles: Botched Executions and America's Death Penalty(Stanford University Press, Stanford, 2014). If such an event occurred during an attempt toterminate a patient's life under the End of Choice Act, the patient would likely have cover underthe Act at least for the physical injuries caused by the failure to properly administer the end of lifemedication.[63] Amongst other things, the original iteration of the Declaration included thepledges that:70THE HEALTH OF MY PATIENT will be my first consideration;I WILL MAINTAIN the utmost respect for human life from the time of itsconception; [64] The Declaration has been amended over time to ensure "sustainability in lightof modern developments in medicine and medical ethics".71 The most recent versionof the Declaration now reads:72THE HEALTH AND WELL-BEING OF MY PATIENT will be my firstconsideration;I WILL RESPECT the autonomy and dignity of my patient;I WILL MAINTAIN the utmost respect for human life;[65] These changes are indicative of modern attitudes towards what medical care isand should be, highlighting both the importance of patient well-being andself-determination, in addition to health outcomes.(g) The right of the mother to choose termination[66] Finally, there are policy factors that favour a broad approach when interpretingthe meaning of treatment in ss 32 and 33 of the Act. It is not necessary to dissect theinterests of AZ's mother from the yet-to-be-realised interests of the 20-week-old foetusand then place the interests of the mother to one side if she wishes to have herpregnancy ended.70 World Medical Association Declaration of Geneva (adopted by the 2nd General Assembly of theWorld Medical Association, Geneva, September 1948).71 World Medical Association "Public consultation opens on WMA Declaration of Geneva" (pressrelease, 8 May 2017).72 World Medical Association Declaration of Geneva (amended by the 68th General Assembly ofthe World Medical Association, Chicago, October 2017) (amendments italicised).[67] Only the mother can consent to a termination of her pregnancy and, if she doesso, it would be either on her own behalf, or on behalf of the foetus and herself.73Under either of these scenarios, denying AZ's mother the right to choose to have atermination severely sabotages her autonomy.[68] Such an outcome would not reflect contemporary social values. The right toopt for termination is a right that can only be exercised by the mother. A result thatsuggests that the mother cannot choose to terminate her pregnancy because of theunrealised interests of the foetus would be anomalous.[69] We therefore conclude that the definition of "treatment", and therefore"treatment injury" under the Act, must have a meaning which respects the autonomyof a pregnant woman to determine what happens to her body.The misdiagnosis in this case[70] The administration of the scan at 20 weeks' gestation involved treatment ofboth AZ's mother and the foetus. The mother gave her consent for the scan whichcould only be performed by accessing the mother's body to achieve its primarypurpose, namely to assess the development of the foetus.[71] The whole purpose of the scan was to detect any foetal abnormalities so as toeither assure AZ's mother that her pregnancy was normal or provide AZ's mother withadvice on what options were available to her in the event foetal abnormalities weredetected.[72] As we have already explained at [30], if a foetal abnormality was detected thatwas capable of being cured or mitigated through in utero medical procedures (such assurgery or medication) then such procedures would be treatment of the foetus.The scan, which is an essential pre-requisite to an in utero medical procedure, formspart of the treatment of the foetus.73 See generally Harrild v Director of Proceedings, above n 20, at [20] per Elias CJ and [120]–[129]per McGrath J.[73] The fact spina bifida was not detected in this case when it ought to have beendoes not detract from the conclusion that the scan itself constituted treatment of thefoetus and the mother. This is because it was part of a "diagnosis of a person's medicalcondition" under s 33(1)(b) and/or "a failure to provide treatment" under s 33(1)(d).[74] We accept therefore that the misdiagnosis of the scan at 20 weeks wastreatment of AZ that potentially could give rise to a treatment injury for the purposesof the Act.Causation[75] To establish causation between the relevant treatment and the personal injury,s 32(1)(b) uses the simple language of "caused by". The Supreme Court in Roper vTaylor used the "material cause" test in situations of "personal injuries that have morethan one cause",74 and we have also followed this test.[76] AZ's central submission is that the failure to correctly diagnose spina bifida atthe 20-week scan meant that the opportunity to treat the spina bifida in utero was lost,and therefore the misdiagnosis was the material cause of AZ's spina bifida from thatpoint on. The primary submission in response was that termination could notconstitute treatment of a foetus under the Act, so the loss of the opportunity toterminate was not a lost opportunity to provide treatment that would have preventedor mitigated the injury, and therefore the misdiagnosis was not the material cause ofAZ's spina bifida.[77] As we have previously explained, had the 20-week scan been properlyinterpreted, AZ's mother's options were to continue with her pregnancy (which wouldpreclude cover for AZ) or to seek a termination (which would also preclude cover forAZ because she would never have been born). As we have noted at [2] there were, atthe time AZ's mother was pregnant, no in utero medical interventions that could haveameliorated spina bifida. The only option to prevent the birth of a child with spinabifida was termination of the pregnancy.74 Roper v Taylor, above n 20, at [62] citing W v Accident Compensation Corporation [2018] NZHC937, [2018] 3 NZLR 859 at [44]–[68].[78] Therefore, termination of the pregnancy would have been treatment of AZwhich operated to prevent the continuation of spina bifida even though the outcomeof the termination would have been to prevent AZ's birth.[79] Where the purpose of the scan was to identify and allow for the prevention offoetal abnormalities, such as spina bifida, and foetal abnormalities ensued because ofmissed diagnosis and a failure to provide treatment, those foetal abnormalities arerightly seen as caused by the failure to provide treatment. This reasoning is consistentwith the majority judgment of the Supreme Court in Allenby.75[80] There is a material and predominant causal link between the misdiagnosis andAZ's personal injury of being born with spina bifida. If the 20-week scan had beenproperly performed, AZ's mother would have had and exercised the opportunity toterminate the pregnancy of AZ. The misdiagnosis meant that this opportunity was lost,thus allowing the continued development of spina bifida in utero where it wouldotherwise have been halted by treatment, namely termination of the pregnancy.Expressed in conventional causation language, but for the failure to detect the spinabifida in utero, AZ would not have been born with spina bifida. We observe thismirrors the reasoning of the United Kingdom Supreme Court in Meadows.76[81] We will now return to the topic of personal injury and discuss whether AZ hasestablished personal injury under either s 20(2)(b) or 20(2)(f).Personal injury under the Act[82] As explained at [22], AZ needs to prove that she suffered a personal injuryunder the Act. We have already concluded that spina bifida per se, is a personal injuryas defined in s 26(1)(b) of the Act. AZ also needs to prove that the personal injury ofspina bifida is either a treatment injury under s 20(2)(b) or a gradual process, diseaseor infection that is a treatment injury under s 20(2)(f). We now address each of thoseprovisions.75 Allenby, above n 9, at [29] per Elias CJ, [80] per Blanchard, McGrath and William Young JJ and[86] per Tipping J.76 See Meadows v Khan, above n 52, at [64] and [68] per Lord Hodge DP and Lord Sales SCJ,[73(iii)] per Lord Burrows SCJ and [85] per Lord Leggatt SCJ.Personal injury by treatment injury (s 20(2)(b))[83] As we have set out at [13], treatment injury is defined in s 32 of the Act asincluding personal injury that is suffered by a person receiving treatment and which iscaused by the treatment.77 Excluded from the definition of "treatment injury" is"personal injury that is wholly or substantially caused by a person's underlying healthcondition".78[84] By the time she was born with spina bifida, AZ's personal injury was materiallycaused by the misdiagnosis of the scan conducted at 20 weeks' gestation. This isbecause, had the spina bifida been detected in utero, AZ's mother would haveexercised her choice to terminate the pregnancy and AZ would not have been bornwith that condition. Thus, the exclusion in s 32(2)(a) does not apply.[85] The misdiagnosis of the 20-week scan led to the loss of AZ's mother'sopportunity to elect to undergo a termination. This would have been treatment for thepurposes of the Act that would have prevented AZ's personal injury, namely beingborn with spina bifida. Logically therefore, the misdiagnosis (which constitutestreatment of AZ) and subsequent failure to enable AZ's mother to terminate herpregnancy is a treatment injury which caused AZ's personal injury.[86] Thus, AZ has cover under s 20(2)(b) of the Act.Personal injury by gradual process, disease, or infection that is treatment injury(s 20(2)(f))[87] Alternatively, the gradual process of continued development of spina bifida isa treatment injury under s 20(2)(f) of the Act.[88] As all accept, the misdiagnosis of the 20-week scan led to the loss of AZ'smother's opportunity to elect on behalf of herself and/or AZ to undergo a termination.Therefore, the termination would have been treatment for the purposes of the Act thatwould have prevented the continuation of the development of spina bifida which is77 Accident Compensation Act, s 32(1)(a)(ii) and (b).78 Section 32(2)(a).undoubtedly a gradual process. This gradual process led to the personal injury thatoccurred when AZ was born with spina bifida.[89] Thus, AZ has established that she suffered a personal injury, namely being bornwith spina bifida. This personal injury resulted from a gradual process, namely thecontinuation of development of spina bifida following the 20-week scan. This gradualprocess was a treatment injury because it was a personal injury wholly or substantiallycaused by treatment, namely the misdiagnosis of the 20-week scan which denied AZ'smother the opportunity to terminate her pregnancy, and it was not wholly orsubstantially caused by AZ's underlying health condition for the reasons we have setout at [84].[90] Thus, AZ has cover for a personal injury under s 20(2)(f).Conclusions[91] When Parliament enacted the treatment injury provisions of the Act, itdeliberately expanded the scope for cover under the Act for persons who sufferpersonal injury arising from an untoward medical event. The terms treatment andtherefore treatment injury have been cast broadly and encompass injuries arising frommedical procedures that extend beyond those that aim to cure a condition. Had AZ'sspina bifida been properly diagnosed in utero it would have been treated by AZ'smother terminating her pregnancy, thereby ensuring AZ would never have been bornwith spina bifida. The failure to detect AZ's spina bifida in utero caused her to be bornwith that condition. Having been born with spina bifida, AZ is entitled to cover forpersonal injury caused by treatment failure.Result[92] The appeal is dismissed.[93] We answer the question of law as follows:Can a person born with spina bifida (claimant) obtain cover fortreatment injury where:(a) the existence of the claimant's spina bifida was not, butshould have been, detected at the 20-week scan stage;(b) had the spina bifida been detected, the claimant's motherwould have elected termination; and(c) the misdiagnosis meant that the opportunity to electtermination was lost to the claimant's mother?Yes.[94] Recognising the public importance of this appeal, ACC has properly agreed topay AZ's costs, regardless of the outcome of the appeal. We therefore make no orderas to costs.[95] We make an order permanently prohibiting publication of the names, addressesor identifying particulars of the medical practitioner/radiologist and the name of themedical centre concerned.MALLON J[96] I agree with the judgment of Cooper P and Collins J. I add the following insupport of the reasons in that judgment.Spina bifida as a gradual process injury[97] Cooper P and Collins J refer to spina bifida as a gradual process injury in thatthe condition continues to develop after the 20-week scan. That leads to the analysisthat AZ has cover either under s 20(2)(b) or (f), the latter route being applicable to agradual process condition.[98] In the High Court, van Bohemen J recorded that it was accepted that AZ'sinjury (her spina bifida) was caused wholly or substantially by a gradual condition.79On appeal ACC takes no position on this — it says there is no evidence before theCourt that spina bifida is a gradual process condition — the agreed facts on which theappeal proceeded referred only to spina bifida being "a condition that typicallydevelops in the 4 to 6-week stage of pregnancy and was well developed by the time ofthe 20-week scan".[99] ACC did not take a position on whether spina bifida continued to develop afterthe 20-week scan because its focus in the courts below was only on whether there wasa treatment injury. Specifically, and reflected in the question of law before us, its focuswas and remains on whether a misdiagnosis of the 20-week scan qualified as atreatment injury to AZ when there was no treatment that could cure spina bifida or haltits development if it had been detected in the 20-week scan. Its contention is that AZ'sinjuries do not qualify as treatment injury because those injuries (the physicalconsequences of spina bifida) are "wholly or substantially caused by [her] underlyinghealth condition",80 that is, her spina bifida.[100] It is important in my view to consider, as Cooper P and Collins J have done,all the components of the route to cover for treatment injury before considering theexclusion on which ACC relies. That is because its meaning may be coloured by thecriteria in the route to cover for treatment injury.[101] It is a reasonable inference on the material before us that spina bifida is agradual process condition. The agreed facts for the appeal refer to spina bifidadeveloping in the four- to six-week stage and being "well developed" by 20 weeks.The inference is that it is a developing condition that is well but not fully developedby 20 weeks' gestation. This is supported by two medical papers provided to us bythe respondent. The results of one of these papers found "clear-cut evidence" for thefact that the continued exposure of spinal cord tissue to the amniotic-fluid environment79 High Court judgment, above n 2, at [61].80 Accident Compensation Act, s 32(2)(a).in utero lead to neurodegeneration that progressed at "later" stages of gestation.81The other similarly refers to a process of neurodegeneration which occurs in utero asgestation progresses.82 Both discuss this in the context of the prospect of foetal surgeryin utero at 19 to 25 weeks to attenuate the neurological consequences of the spinedamage.83[102] I proceed on the basis that spina bifida is a gradual process condition thatcontinues beyond 20 weeks in utero but, as I will discuss, ultimately the route to coverfor treatment injury on that basis overlaps with s 20(2)(b).Section 20(2)(b) or (f)[103] As Cooper P and Collins J discuss, Allenby and Cumberland were the key caseson which the High Court judgment was based.84[104] As was accepted by the Supreme Court in Allenby, there is cover for thephysical impacts of cancer (pain and suffering) which spread following themisdiagnosis of a tumour.85 In such a case, the pain and suffering are caused bydisease, but that pain and suffering would have ended if the tumour had been correctlydiagnosed and treated in time to prevent its spread. The exclusion from treatmentinjury for personal injury that is "wholly or substantially caused by [the] person'sunderlying health condition" does not apply,86 even though the person had cancer andcontinues to have cancer after the treatment. The cause of the pain and suffering aftertreatment is the misdiagnosis, so it is a "treatment injury".[105] Similarly, as was held in Allenby, although a person who is pregnant suffersphysical effects from and because of pregnancy, when pregnancy has occurred becausea medical professional has incorrectly performed a sterilisation procedure, the physical81 Dorothea Stiefel, Andrew J Copp and Martin Meuli "Fetal spina bifida: Loss of neural functionin utero" (Author Manuscript, PubMed Central, May 2013) at 6. This article was published infinal edited form as "Fetal spina bifida in a mouse model: loss of neural function in utero" (2007)106 J Neurosurg 213.82 Andrew J Copp and others "Spina bifida" (2015) 1 Nat Rev Dis Primers at 1–3.83 Copp and others, above n 82, at 9–11; and Stiefel, Copp and Meuli, above n 81, at 7. It is notsuggested that in utero surgery was an available treatment for AZ.84 Above at [16]–[19] citing Allenby, above n 9; and Cumberland, above n 10.85 Allenby, above n 9, at [66] per Blanchard, McGrath and William Young JJ.86 Accident Compensation Act, s 32(2)(a).effects of pregnancy are a personal injury caused by medical misadventure (nowtreatment injury).87 The exclusion for a person's underlying condition does not apply.[106] As Cooper P and Collins J discuss, Cumberland concerned an expectantmother who went on to give birth to a child with spina bifida.88 If the medicalprofessionals had correctly read the 20-week scan, that condition would have beenpicked up. The Court held that the "analytical focus for the purposes of cover must beon the physical consequences to the [mother] in the period post the misdiagnosis".89Following the misdiagnosis, the pregnancy continued and from this point constituteda personal injury caused by treatment injury (subject to evidence that the pregnancywould have been terminated but for the misdiagnosis).90[107] These cases illustrate the need for care in identifying the cause of physicalinjuries when the claimed basis for cover is treatment injury. When personal injury iscaused by treatment injury, the focus is on the physical consequences suffered by theperson claiming cover following the treatment. Underlying physical injuries beforethe treatment that continue after the treatment can be treatment injury if theircontinuation is caused by a treatment failure (for example, a misdiagnosed scan).A gradual process condition in such circumstances is not the same as an underlyinghealth condition that is wholly or substantially the cause of the personal injury.[108] The analytical route to cover taken by the majority in Allenby was s 20(2)(b)(the ongoing pregnancy gave rise to physical impact which was caused by themisdiagnosis) and it was unnecessary to consider s 20(2)(f).91 Elias CJ in Allenbyconsidered further personal injuries during the pregnancy were covered unders 20(2)(f) (the physical consequences of the pregnancy were caused by a gradualprocess suffered by the mother that is treatment injury) or s 20(2)(g).92 In Cumberlandthis Court took the view that there would be cover for the mother's pregnancy beyond87 Allenby, above n 9, at [29] per Elias CJ, [80] per Blanchard, McGrath and William Young JJ and[86] per Tipping J.88 Above at [18].89 Cumberland, above n 10, at [35].90 At [54]–[57].91 Allenby, above n 9, at [76] per Blanchard, McGrath and William Young JJ.92 At [20]–[26] and [31] per Elias CJ.20 weeks' gestation under either s 20(2)(b), in accordance with the majority reasoningin Allenby, or s 20(2)(f), in accordance with Elias CJ's reasoning in Allenby.93[109] As Allenby and Cumberland discuss and demonstrate, the Act provides anexpanded definition of "personal injury" for injury caused by gradual process (ordisease or infection) when the claimed basis for cover is "treatment injury".94As Cooper P and Collins J note, in such a case the key provisions are circular andreach the same result.95 To summarise the routes to cover that their judgment finds:(a) Did AZ suffer a personal injury under ss 20(2)(b) and 26(1)(b)? Yes,AZ has physical injuries that cause her pain and suffering.(b) Is the personal injury one not caused wholly or substantially by gradualprocess or disease in accordance with s 26(2)?(i) Yes, AZ's physical injuries are caused by gradual processbecause they are caused by her having spina bifida which is agradual process condition. AZ's personal injury is not coveredunless the personal injury is caused by gradual process that isa treatment injury (s 20(2)(f)).(ii) Alternatively, no, AZ's physical injuries are not caused bygradual process because, from the point of misdiagnosis, theyare caused by treatment injury (s 20(2)(b)).(c) Does AZ's birth with spina bifida qualify as a treatment injury unders 32?(i) Was the personal injury suffered by a person receiving treatmentfrom a registered health professional in accordance withs 32(1)(a)? Yes, treatment includes "a diagnosis of a person'smedical condition",96 and here the health professional failed to93 Cumberland, above n 10, at [57] referring to Allenby, above n 9, at [20]–[26] per Elias CJ.94 Cumberland, above n 10, at [37]; and Allenby, above n 9, at [18] per Elias CJ.95 Above at [26].96 Accident Compensation Act, s 33(1)(b).diagnose an abnormality consistent with the foetus having spinabifida.(ii) Was the personal injury caused by treatment in accordance withs 32(1)(b)? Yes, due to the misdiagnosis, AZ's mother wasunable to terminate her pregnancy as she would have done if theultrasound scan had been read correctly. Terminating thepregnancy would have brought an end to the physicalconsequences of AZ's condition.(iii) Is the personal injury one that is wholly or substantially causedby AZ's underlying health condition as excluded by s 32(2)?No, because the cause of AZ's physical disabilities upon birth(the qualifying personal injury) was the misdiagnosis. Had thatultrasound been read correctly, the mother would haveterminated the pregnancy and AZ would not have had thosephysical consequences.[110] From the above summary, it can be seen that s 20(2)(b) and (f) both requireanalysis of the definition of "treatment injury" and whether AZ's physical injurieswere caused by the misdiagnosis, and that both routes have the same ultimate answer.As William Young P said in Accident Compensation Corporation v D (the precursorto the Supreme Court's decision in Allenby) it is not clear that there is any practicaldifference between s 20(2)(b) and (f) when the personal injury is caused by medicalmisadventure (the predecessor of treatment injury).97Treatment of AZ[111] ACC takes issue with the analysis under s 32(1)(b) and (2)(a) ([109(c)(ii)–(iii)]above). It says the issue of treatment for AZ should be looked at from her perspectiveas she is the one who is seeking cover. It says that, because there is no in uterotreatment of spina bifida it is not possible to have life without spina bifida if the97 Accident Compensation Corporation v D [2008] NZCA 576 at [75]–[78] per William Young Pdissenting.condition exists in the foetus. It submits that termination is not treatment because it isnot curative, does not confer a benefit on the foetus, and only serves to end its life.It says this means that AZ has suffered a personal injury because she has spina bifida,and since this is an underlying condition, her injury is not a treatment injury.[112] ACC contrasts this with Allenby and Cumberland.98 It notes that both of thosecases were only concerned with causation from the perspective of the mother. In thosecases, the treatment (had it been performed correctly) would have ameliorated themother's personal injury (the physical impacts of pregnancy would not have beensuffered in Allenby or continued in Cumberland). If performed correctly, therespective treatments (the failed sterilisation and the misdiagnosed scan) were carriedout in connection with the physical injuries and would have brought an end to thoseinjuries. The claimants therefore had cover for those injuries. Similarly, ACC notesthat, in the example of a misdiagnosis of a cancer tumour, referred to in Allenby andCumberland,99 the treatment performed correctly would have halted the spread of thecancer.[113] ACC refers to the following passage in Cumberland:100[50] If the "traditional" or standard approach to causation is applied tocases of failure to diagnose resulting in personal injury, the relevant questionis: if the diagnosis had been properly made, and proper treatment hadfollowed, was the patient more likely than not to have recovered? If theanswer is "yes", it can be said that the misdiagnosis "caused" the resultinginjury.[114] In contrast, there is no in utero treatment of spina bifida leading to a life withoutspina bifida. ACC submits that failed treatment (the misread scan) did not cause aninjury because the treatment would not have treated the underlying condition and sowould not have resulted in a better outcome for AZ in terms of the physicalconsequences of the condition. It says this recognises the practical issue that failureto diagnose did not bring about the underlying condition. It says that, in cases of98 Allenby, above n 9; and Cumberland, above n 10.99 Allenby, above n 9, at [66] per Blanchard, McGrath and William Young JJ; and Cumberland,above n 10, at [36].100 Cumberland, above n 10.misdiagnosis, cover has only been awarded where the underlying condition wouldhave been treatable if it had been correctly diagnosed at that time.[115] The passage quoted from Cumberland should not be read as the only way inwhich causation can be established in failure to diagnose cases. It was illustrative ofthe causation issue considered in that case. More importantly, it is wrong in my viewto say that a mother's decision to terminate her pregnancy cannot be in the interests ofher unborn child. While it is obviously quite wrong to think that a severely disabledchild cannot have a fulfilling and rewarding life, it will nevertheless be a life withsubstantial physical difficulties. It is for the mother to decide (involving others as shemay consider appropriate in her circumstances), on behalf of her unborn child, whatis in the interests of the child. A scan providing a proper diagnosis gives the motherthe opportunity to make that decision and, where termination would have been elected,is treatment preventing further development of the injury.[116] The contrary view, that it is against the interests of the unborn child to end thelife of the foetus, introduces value judgments that are not for this Court to make.As van Bohemen J put it in the High Court, "treatment" is "value neutral".101 AsCooper P and Collins J say, the definition in s 32 is for the purposes of determiningwhether there is "treatment injury" under s 33, and ss 32 and 33 of the Act are muchbroader than the traditional curative definitions relied on by ACC.102Common law position[117] Cooper P and Collins J set out several matters that support the conclusionreached. The one on which I wish to add further supporting reasons is the prospect ofa common law claim if AZ's personal injury is not covered under the Act. I do sobecause ACC drew support from common law cases, in particular McKay v Essex AreaHealth Authority and Harriton v Stephens,103 for its submission that a failure todiagnose is not causative if there is no effective treatment for the underlying condition.This submission rests on the assumption that "treatment" under the Act is not101 High Court judgment, above n 2, at [87].102 Above at [36]–[69].103 McKay, above n 58; and Harriton, above n 60."neutral". However, like Cooper P and Collins J, I consider the common law positionsupports an interpretation that provides cover for AZ.[118] The common law has distinguished between what are called "wrongful birth"claims and "wrongful life" cases. Wrongful birth claims are claims brought by parentsin their own right for loss incurred by them by reason of the birth of the child.Wrongful life cases are claims brought by or on behalf of the child in their own rightfor their own losses — seeking general and/or special damages.104 McKay andHarriton are both wrongful life cases.[119] There is less controversy about wrongful birth claims than wrongful lifeclaims.105 Meadows v Khan is an example of the former.106 In that case, the medicalprofessional had been consulted for the purposes of establishing whether the motherwas a carrier of the haemophilia gene. It was not in dispute that the mother couldrecover compensatory damages for the additional costs associated with rearing a childwith that gene. As she would have terminated the pregnancy if the medicalprofessional had properly advised her that genetic testing would establish whether shewas a carrier, these additional costs were caused by the medical professional'snegligence.107[120] The more controversial issue in wrongful birth claims is what else may berecovered. In Meadows the child was born with haemophilia and an unrelateddisability. The issue was whether the mother could also recover compensatorydamages for the additional costs associated with the child being autistic. The Court104 Harriton, above n 60, at [12].105 See for example Prue Vines, Peter Handford and Carol Harlow "Duty of Care" inCarolyn Sappideen and Prue Vines (eds) Fleming's: The Law of Torts (10th ed, Thomson Reuters,Sydney, 2011) 151 at [8.220].106 Meadows v Khan, above n 52.107 At [68] per Lord Hodge DP and Lord Sales SCJ, [73(iv)] per Lord Burrows SCJ and [86] perLord Leggatt SCJ. That was consistent with earlier decisions of the Court of Appeal holding thata claimant could recover compensation for the extra costs associated with child's disability wherethe child was born following a negligently-performed sterilisation, and where a claimant lost theability to terminate a pregnancy because her doctor had negligently failed to examine or test herfor pregnancy: see Parkinson, above n 57; and Groom v Selby, above n 57.held that she could not as it was beyond the scope of the duty of care given the purposefor which the doctor had been consulted.108[121] As indicated, wrongful life claims have met with much less success althoughthat is not a unanimous position across jurisdictions.109 ACC submits that McKay andHarriton support its submission that the "treatment" in this case did not cause AZ'sinjuries. That is because it says that, in each case, the medical professional'snegligence, while causing the child to be born, did not cause the child's disabilities(hence the term "wrongful life" claims). Each child had become disabled in uterothrough no fault of the medical professional and was claiming a duty to prevent theirbirth (via diagnosis of the rubella suffered by their mothers and the option toterminate).[122] It is correct that in both McKay and Harriton the duty of care was analysedthrough this framework. In that context, policy factors were viewed as negating acause of action. Principally in McKay, those policy factors were the sanctity of life,110and the impossibility of assessing damages (since damages would involve comparingthe value of non-existence against the value of existence with a disability).111In Harriton the majority judgment was concerned with the potential conflict for themedical practitioner between the interests of the foetus and the mother;112 the lack ofa logical distinction between the proposed duty of care and a correlative duty on amother who might decline to terminate the pregnancy;113 and, importantly, the fact thatdamages would require an assessment between life with disabilities and non-existence,which was an impossible comparison.114108 At [68] per Lord Hodge DP and Lord Sales SCJ, and [77] per Lord Burrows SCJ. But seeJames Edelman McGregor on Damages (21st ed, Sweet & Maxwell, London, 2021) at [40-308]–[40-311] (pre-dating the United Kingdom Supreme Court decision in Meadows v Khan,above n 52), suggesting that "[t]here might be something to be said for the proposition" that thefull basic costs of the child's care (not just the additional costs associated with the disability)should be recoverable when a child is born with a disability that the medical professional wasengaged to advise on, noting that there was a difference between failed sterilisation cases andthose where the basis of the claim is "a failure to warn of impending disability".109 As discussed by Cooper P and Collins J, above at [53]–[54].110 McKay, above n 58, at 1180–1181.111 At 1181–1182.112 Harriton, above n 60, at [249] per Crennan J (with whom Gleeson CJ, Gummow and Heydon JJagreed: at [2] per Gleeson CJ, [4] per Gummow J and [208] per Heydon J).113 At [250] per Crennan J.114 At [252] per Crennan J.[123] In Harriton, Kirby J dissented. He would have allowed the child's claim fordamages, both general damages for pain and suffering as well as special damagesassociated with the disability.115 His judgment responded to the policy factors againstrecognising a duty of care.116 Of most relevance for present purposes is his responseto the point on the impossibility of damages.117 As to that he said:[101] The judicial discourse in the State Supreme Court in the present caseand in other like Australian and overseas cases has been permeated by a searchfor the appropriate "comparator". It has resulted in a conclusion that sucha "comparator" does not exist because the posited "comparator" is a foetuswhose life would have been terminated by a medical practitioner acting withdue care. To this apparently logical argument [there are] two answers First, the comparator contemplated in this case, non-existence, is purelyhypothetical – a fiction, a creature of legal reasoning only. No one is nowsuggesting the actual death of the appellant. Indeed, it is her very existencethat gives rise to the pain, suffering and expense for which she brings heraction. And secondly, there are limits to the insistence on this fictitiouscomparator where doing so takes the law into other inconsistencies and to aconclusion that is offensive to justice and the proper purpose of the law ofnegligence. A medical practitioner who has been neglectful and causeddamage escapes scot-free. The law countenances this outcome. It doesnothing to sanction such carelessness. It offers no sanction to improve properstandards of care in the future.[124] Whatever the prospects of success of such a claim in New Zealand in the futurein the absence of cover under the Act, a key rationale for the accident compensationscheme was the disadvantages of the common law, including the uncertainty, delayand expense of litigation and its impact on the claimant's rehabilitation. Here AZexists with her physical injuries. She would not have had the physical consequencesof her condition if the medical professional had read the ultrasound scan correctly.[125] It is an advantage of the accident compensation scheme that AZ does not haveto establish a duty of care owed to her (as distinct from that owed to her mother) orthe tort concept of damages (that she is worse off for having been born which involvesthe difficult/impossible comparator between life with disabilities and non-existence).There is nothing in the Act, which has its own specific definition of treatment injury,that imports the concerns in the common law wrongful life claims onto that definition.If AZ has personal injuries that are a treatment injury, she has cover under the Act.115 At [109] and [153]–[155] per Kirby J dissenting.116 At [110]–[152] per Kirby J dissenting.117 See [95]–[102] per Kirby J dissenting.Having cover entitles her to claim the "entitlements" provided under the Act as theyrelate to her injury.118[126] Conversely, if there was no accident compensation scheme, AZ's motherwould likely be able to recover at common law the additional costs of AZ's upbringingbecause of her disability — established as being recoverable loss in a wrongful birthclaim in the United Kingdom.119 However, here, AZ's mother received compensationonly for the injury to her (her pregnancy) for the period from the time the 20-week scanwas misread until when AZ was born.120 As the Act provides cover only for the personwho has suffered personal injury, if AZ does not have a claim under the Act, no furtherentitlements are available under the scheme.[127] A restrictive reading of "treatment" would mean AZ is only eligible for carethrough the public health and social welfare systems. AZ can only access entitlements,such as treatment, therapy, attendant care, weekly compensation, and lump sumcompensation if she has cover under the Act. This means that AZ's mother wouldhave been worse off than she would have been under the common law, and AZsimilarly would have been worse off to the extent that she would benefit if her motherreceived compensation for the additional costs associated with her disability.121[128] To the extent that there is a gap in cover for AZ on ACC's interpretation of theAct, relative to the common law position, that gap would, as Cooper P and Collins Jsay, invite civil personal injury claims and that is difficult to reconcile withParliament's intention and the social contract that the Act entails. As it was put in the118 Accident Compensation Act, s 67. We did not receive submissions about what these entitlementswould likely be in AZ's case. With that caveat, relevant entitlements under the Act might includehealth care costs associated with her condition, social rehabilitation entitlements such as homehelp or home modifications, and a lump sum for permanent impairment.119 Meadows v Khan, above n 52.120 In accordance with Cumberland, above n 10, at [35].121 I note that a concern with wrongful birth claims under which damages are paid to the parent isthat, as there is no obligation to apply those damages for the benefit of the child, they can bedissipated in a manner that does not benefit the child. In response, I note the response of Kirby Jin Harriton, above n 60, at [96], citing Procanik by Procanik v Cillo, above n 59, at 762, in whichit was said: "[w]hatever logic inheres in permitting parents to recover for the cost of extraordinarymedical care incurred by a birth-defective child, but in denying the child's own right to recoverthose expenses, must yield to the injustice of that result".majority judgment in Allenby in relation to cover for pregnancy following a failedsterilisation:122[77] To hold that there was no cover in the circumstances of this case wouldbe to create what the Court of Appeal majority in Accident CompensationCorporation v D recognised would be an "odd" gap in the general coveragefor medical misadventure which would be detrimental for the woman patient(in that she could not recover compensation without litigation) and mightcause the registered health professional either to have to pay for additionalinsurance cover, over and above the compulsory accident compensationlevies, or to decline to perform sterilisations because of the risk of being sued.And if common law damages claims were to be permitted they would, basedon the experience in other jurisdictions, give rise to very difficult issues in theassessment of damages, as is demonstrated by the cases to which Mallon Jreferred.[78] Denial of coverage for her pregnancy consequent upon medicalmisadventure would not be consistent with the overall spirit of the statutewhich appears to us still, after 1992, intended to provide universal coveragefor accidents and for the consequences of medical misadventure.[129] The same points apply to cover for AZ's personal injury. The MedicalProtection Society Ltd, as intervener, submits that, if people in AZ's position do nothave cover, the end result will be medical practitioners and medical centres whoundertake scanning procedures having little interest in undertaking the work due totheir exposure to common law actions. No evidence was provided in support of thesubmission. Regardless, as Allenby accepted, there will likely be consequences ifthere is a gap in cover for medical misdiagnosis in this particular area relative to othertreatment injuries for which there will be cover, and this seems contrary to the publicinterest given the social contract on which the accident compensation scheme ispremised. I conclude excluding cover is not what must have been intended by the Act.Solicitors:Meredith Connell, Wellington for AppellantSchmidt & Peart Law, Auckland for RespondentWotton + Kearney, Auckland for Intervener122 Allenby, above n 9 (footnotes omitted).