Accident Compensation Corporation v Hannam

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2010] NZACC /53 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ACCIDENT COMPENSATION CORPORATION (Al 55/09) Appellant AND TERRI HANNAM Respondent HEARD at AUCKLAND on 13 July 2010 APPEARANCES Mr A D Barnett, Counsel for Appellant. No appearance on behalf of Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] This Appeal arises from a Review decision dated 24 September 2007 whereby the Reviewer quashed the Appellant's primary decision to decline cover and granted cover to the Respondent for personal injury caused by medical misadventure, being medical error, that personal injury being the Respondent's pregnancy subsequent to her undergoing a laparoscopic tubal ligation. [2] The relevant background facts are that the Respondent underwent surgery for a laparoscopic tubal ligation in January 2004 and following which she subsequently became pregnant, giving birth to a healthy child on 7 March 2005. [3] The Respondent sought cover for the fact of her pregnancy contending medical error on the part of the surgeon, she contending that the tubal ligation clips were incorrectly placed. That fact seems to have been accepted by the treating surgeon. 2 [4] On 18 July 2005, the Appellant issued a decision declining the Respondent's claim, it stating that pregnancy cannot be considered to be a personal injury within the meaning of the Act. (5] It is the case that when the Review of the Appellant's primary decision came to be heard, there was in existence a decision of the High Court namely Accident Compensation Corporation v D (2007) NZAR679 which had confirmed a District Court decision that such a pregnancy arising from similar circumstances could be regarded as a personal injury within the meaning of the Act. [6] That was the state of the law at the time the Reviewer issued her decision and not unnaturally the Reviewer elected to follow the High Court decision in D and accordingly quashed the primary decision and substituted a decision to grant cover. [7] It is the case that the Accident Compensation Corporation obtained leave to appeal the decision in D to the Court of Appeal and that appeal was heard in July 2008 and the Judgment of the Court given on 22 December 2008. [8] The majority in the Court of Appeal in D determined that a pregnancy could not be regarded as a personal injury within the meaning of the Act. At para 55 of the Majority Judgment, it is stated: "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.' . . ..... "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." [9] Not unnaturally when that Court of Appeal decision was issued, the Corporation sought leave to lodge an Appeal against the Review decision in the present case even though that Appeal was out of time by a considerable period. I consider that there can be no prejudice to the Respondent by granting leave as at all times the issue in question was one of law rather than fact and I find that the Appellant has acted promptly following the issue of the Court of Appeal decision. [10] As a matter of law, I find this Court is bound by the Court of Appeal decision in D, it being directly on point, and with a very similar factual background. The result therefore must be that the Review decision in the present case must now be regarded as being wrong in law, and as a consequence thereof it is quashed and the Appellant's primary decision to decline cover to the Respondent is reinstated. 3 [11] Furthermore, leave is granted to the Appellant to extend the time for filing this Appeal to the date upon which it was actually filed on 11 February 2009. DATED this 6 day of September 2010 M J Beattie District Court Judge