Estate of Trevarthen v Accident Compensation Corporation (Decline Cover)

IN THE DISTRICT COURT AT WELLINGTON [2018] NZACC 60 ACR 006/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ANGELA CHRISTINE CALVER as Executrix and Trustee of the ESTATE OF DEANNA TREVARTHEN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 14 February 2018 Appearances. B Woodhouse for the appellant P Radich, QC for the respondent Judgment: 19 April 2018 RESERVED JUDGMENT OF JUDGE JH WALKER Decline Cover] 1] The appellant in these proceedings is the Estate of Deanna Trevarthen and the respondent is the Accident Compensation Corporation ("the Corporation"). [2] This is an appeal pursuant to s 149 of the Accident Compensation Act 2001 ("the Act"). [3] The proceedings relate to a decision of the Corporation dated 11 January 2016 declining to approve cover to Ms Trevarthen in respect to diagnosis of right pleural mesothelioma. [4] The matter was part heard on review on 12 July 2016 and concluded on 15 November 2016 before Reviewer, Mr Bernard Lock, who issued a decision on 5 December 2016, upholding the decision of the Corporation. [5] Since the original proceedings were in the name of the deceased, Ms Trevarthen, during the course of the hearing, pursuant to 4.50 District Court Rules 2014, I made a direction appointing Ms Calver, with her consent, the executrix and trustee of Ms Trevarthen's will, as appellant in respect to these proceedings. Background [6] It is understood that Ms Trevarthen began to experience the effects of mesothelioma in 2015. At this time, she was undergoing fertility treatment and had been feeling increasingly unwell. She was diagnosed with right sided pleural mesothelioma in on 28 October 2015. Pleural mesothelioma is a cancer where mesothelioma tumours form in the pleural, a thin membrane of cells that line the lung and chest wall. [7] Ms Trevarthen applied for cover with the Accident Compensation Corporation on 11 November 2015 under s 30 of the Act, as it was acknowledged by Ms Woodhouse, counsel for Ms Trevarthen, that ordinarily mesothelioma attracts ACC cover via the work related gradual process provision. The overarching legislative requirement for a s 30 claim is that cover can only be provided where the claim is linked to the period of paid employment. [8] It is accepted that Ms Trevarthen had no work place exposure rendering s 30 inapplicable. [9] The Corporation declined application by letter dated 11 January 2016. [10] Subsequently, a further claim for cover was filed pursuant to ss 20(2)(a) and 25(1)(b) of the Act relating to "inhalation of a foreign object on a specific occasion". [11] A supplementary report dated 29 October 2015, was provided by Dr Kellow, Consultant Pathologist, indicating a finding consistent with a diagnosis of malignant mesothelioma. [12] An operation note of 27 October 2015, being the date of surgery, was provided by Mr Chaudhuri, Cardiothoracic Surgeon. As a result of an exploratory right video assisted thoracoscopy, and pleural biopsy, Ms Trevarthen's medical condition was identified. [13] A report dated 16 November 2015, was provided by Dr Richard Sullivan, Consultant Medical Oncologist, in respect to a diagnosis of mesothelioma with treatment options. [14] A report from Dr Anne Fraser, Lung Cancer and Blood Directorate, was made to Ms Trevarthen's GP, Dr Anna Harriett, on 20 November 2015. This report related to discussions of palliative chemotherapy for the diagnosed malignant mesothelioma. [15] An ACC medical practitioner questionnaire form dated 24 November 2015 was completed by Dr Harriett. This included the fact that Ms Trevarthen was an ex- smoker, had stopped two years prior, and was awaiting respiratory and chemotherapy follow-up. [16] A letter, dated 24 November 2015 from Dr Harriett, attached the latest letter from the Oncologist which noted: ... not ACC candidate as no known work related exposure to Asbestos. In the letter Dr Harriett stated: I did note from Deanna's history she did have a father who worked as an electrician and would attend work sites with him at times as a child. I'm unsure as to what other possible potential incidental exposure to asbestos she may have encountered during her lifetime. [17] A cover questionnaire completed by Ms Trevarthen, dated 4 December 2015, objected to the question relating to her smoking, as being offensive and archaic. She also stated: Having never worked or lived in an environment containing asbestos, Dr Richard Sullivan who had previously stated that in his view "everyone contracts mesothelioma because of asbestos," asked about any possible contact with asbestos. [18] On receipt of the first application for cover, the Corporation obtained a report, dated 16 December 2014 from Dr John Monigatti, Lead Occupational Health Advisor to ACC and concluded (p 238 Bundle of Documents ("BofD")): As Ms Trevarthen had no known occupational exposure to asbestos I must conclude that the precondition for cover at s.30(3) of the Act is not met. Her condition may be attributable to non-work exposure or she may be among the small percentage of people in whom mesothelioma arises without apparent cause. [19] On 11 January 2016, the Corporation advised it was unable to approve cover. [20] In respect to the second application for cover, an assessment was undertaken by Ms J Whitter, case manager, dated 15 April 2016, and a further report was obtained from Dr John Monigatti, dated 18 April 2016. His report states (p 39 BofD): What Ms Trevarthen has to do to substantiate the claim is to trace her mesothelioma to the inhalation of asbestos fibres on a specific occasion in childhood. The claim rests on the assumption that her mesothelioma was caused by asbestos, she was exposed to it via her father's work, and the causative inhalation occurred when she said it did. Given the fact that a person has suffered a personal injury is not to be construed as an indication or presumption that it was caused by an accident, proving it to the standard of more likely than not will be difficult. The most Ms Trevarthen can argue is that having a disease usually caused by asbestos is proof enough of causation of PICBA in in her case without needing to pin-point how, where and when it actually happened. Furthermore, Ms Trevarthen claims to have been exposed to asbestos not on one occasion but on several. The modern thinking about the genesis of mesothelioma is well encapsulated by Professor Douglas Henderson of Adelaide, who states: "As cumulative asbestos exposure increases, so does the likelihood of mesothelioma as a consequence. It follows that each pattern/episode of asbestos exposure within an acceptable latency interval contributes causally towards the development of mesothelioma. When there are multiple exposures with an appropriate latency interval, each one of those exposures makes a causal contribution towards mesothelioma induction, incremental on 'background' exposure and any preceding above- 'background"" exposures from identified (and any non-identified) point sources of exposure. When there are multiple asbestos exposures one cannot point to any one exposure as being responsible for mesothelioma induction entirely, with exculpation of the others. In light of this, and given the cover for work-related mesothelioma is always awarded on the basis of cumulative rather than one-off exposure to asbestos, I cannot see any sustainable argument for causation by a specific event in Ms Trevarthen's case. I am unable to support the claim on that basis. [21] A further decision was issued by the Corporation on 20 April 2016 for a personal injury claim under s 25 of the Accident Compensation Act, specified as a personal injury caused by "the inhalation of a foreign object on a specific occasion". The Corporation stated they were unable to approve the claim. The decision letter stated: The Accident Compensation Act 2001 describes what an 'accident' is, and what we can cover. Based on the information we received, your injury wasn't caused by an accident which means we're unable to approve your claim. [22] An application for review was filed on 21 April 2016. A brief of evidence from Ms Trevarthen, dated 9 June 2016, was also supplied. [23] An opinion, provided by Dr Glen Reid, Associate Professor Concord Medical School Asbestos Diseases Research Institute, University of Sydney, was received on 14 June 2016, and a report was received from Dr Bill Glass, occupational medicine specialist, dated 29 July 2016. [24] A report was provided by Dr John Monigatti, dated 15 August 2016, in response to the reports from Dr Reid and Dr Glass. [25] A further report was obtained from Dr Reid on 7 September 2016, and also from Dr Sullivan, on 20 October 2016. [26] In respect to the review, it is unclear why the Reviewer considered both ACC decisions in the review. [27] Ms Trevarthen applied for a review of the Corporation's decision. The application for review indicates that the decision of 20 April 2016 is the decision that is being challenged, and the reasons include "the claimant disagrees with the ACC decision on the basis that they suffered an injury that should be covered". This would not be applicable to the first decision. The review accordingly relates solely to the second decision made by the Corporation. This was heard on 7 September 2016. [28] In a decision of 21 September 2016, the Reviewer upheld the Corporation's decision on the grounds there was insufficient evidence of the appellant's mesothelioma being caused by asbestos inhalation, and that the inhalation of asbestos on multiple occasions does not constitute an "accident" for the purposes of s 25(1)(b) the review decision). [29] It is noted in the review decision, just prior to the review hearing, Ms Woodhouse withdrew the application relating to the January decision. [30] Ms Trevarthen died on the same day that the review decision was issued and her estate lodged an appeal against that decision. [31] The Corporation filed a cross appeal dated 21 February 2017, on the basis that the Reviewer erred in law in respect to the grounds relied on in the review decision. [32] The cross appeal challenges the basis of the reviewer's findings, which state: I find that mesothelioma caused by asbestos inhalation would meet the statutory definition of a personal injury. However, I am compelled to dismiss this review as the evidence before me merely establishes a risk or possibility that Ms Trevarthen's diagnosed mesothelioma was caused by asbestos inhalation. A mere risk of asbestos exposure is insufficient, what is required is the evidence that established that it is more likely than not that Ms Trevarthen had inhaled asbestos fibres and that had caused the mesothelioma. In this case the evidence merely touches on the potential exposure and not on sufficient basis for cover Furthermore, even if one should take a robust inference that asbestos inhalation had caused the mesothelioma this review would still not succeed as there is insufficient evidence to conclude that the inferred inhalation falls within the statutory definition of an accident by inhalation ... I accordingly dismiss the review application. [Emphasis added] The Law [33] The pivotal sections in respect to this decision are ss 20, 25, 26 and 30 of the Act. These are set out hereunder: 20 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts or work-related mental injury) (1) A person has cover for a personal injury if- a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and (c) the personal injury is described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to- personal injury caused by an accident to the person: personal injury that is treatment injury suffered by the person: treatment injury in circumstances described in section 32(7): (d) personal injury that is a consequence of treatment given to the person for another personal injury for which the person has cover: (e) personal injury caused by a work-related gradual process, disease, or infection suffered by the person: personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person (8) personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover: h personal injury caused by a gradual process, disease, or infection consequential on treatment given to the person for personal injury for which the person has cover: (i) personal injury that is a cardiovascular or cerebrovascular episode that is reatment injury suffered by the person. (i) personal injury that is a cardiovascular or cerebrovascular episode that is personal injury suffered by the person to which section 28(3) applies. (3) Subsections (1) and (2) are subject to the following qualifications: (a) section 23 denies cover to some persons otherwise potentially within the scope of subsection (1): (b) section 24 denies cover to some persons otherwise potentially within the scope of subsections (1) and (2)(e). (4) A person who suffers personal injury that is mental injury in circumstances described in section 21 has cover under section 21, but not under this section. 25 Accident (1) Accident means any of the following kinds of occurrences: (a) a specific event or a series of events, other than a gradual process, that- (i) involves the application of a force (including gravity), or resistance, external to the human body; or (ii) involves the sudden movement of the body to avoid a force including gravity), or resistance, external to the body; or (ifi) involves a twisting movement of the body: (b) the inhalation of any solid, liquid, gas, or foreign object on a specific occasion, which kind of occurrence does not include the inhalation of a virus, bacterium, protozoan, or fungus, unless that inhalation is the result of the criminal act of a person other than the injured person: (ba) the oral ingestion of any solid, liquid, gas, fungus, or foreign object on a specific occasion, which kind of occurrence does not include the ingestion of a virus, bacterium, or protozoan, unless that ingestion is the result of the criminal act of a person other than the injured person: (c) a burn, or exposure to radiation or rays of any kind, on a specific occasion, which kind of occurrence does not include a burn or exposure caused by exposure to the elements: d) the absorption of any chemical through the skin within a defined period of time not exceeding I month: (e) any exposure to the elements, or to extremes of temperature or environment, within a defined period of time not exceeding 1 month, that, i) for a continuous period exceeding 1 month, results in any restriction or lack of ability that prevents the person from performing an activity in the manner or within the range considered normal for the person; or ii) causes death. (2) However, accident does not include- (a) any of those kinds of occurrences if the occurrence is treatment given,- (i) . in New Zealand, by or at the direction of a registered health professional; or (ii) outside New Zealand, by or at the direction of a person who has qualifications that are the same as or equivalent to those of a registered health professional; or (b) any ecto-parasitic infestation (such as scabies), unless it is work-related; or (c) the contraction of any disease carried by an arthropod as an active vector such as malaria that results from a mosquito bite), unless it is work- related. (3) The fact that a person has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident. 26 Personal injury (1) Personal injury means- ( a) the death of a person; or physical injuries suffered by a person, including, for example, a strain or a sprain; o (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 section 21; or (da) work-related mental injury that is suffered by a person in the circumstances described in section 21B; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body. (1A) Personal injury includes any degree of hearing loss that is 6% or more of binaural hearing loss caused by a personal injury described in section 20(2). (1B) Personal injury does not include any degree of hearing loss caused by- a) a personal injury other than a personal injury described in section 20(2); or (b) the ageing process; or c) any other factors. ( 2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). 3) Personal injury does not include a cardiovascular or cerebrovascular episode unless it is personal injury of a kind described in section 20(2)(i) or (j). (4) Personal injury does not include- (6) personal 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. (5) For the purposes of subsection (1)(e) and to avoid doubt, prostheses does not include hearing aids, spectacles, or contact lenses. 30 Personal injury caused by work-related gradual process, disease, or infection (1) Personal injury caused by a work-related gradual process, disease, or infection means personal injury- suffered by a person; and caused by a gradual process, disease, or infection; and caused in the circumstances described in subsection (2). (1A) [Repealed] (2) The circumstances are (a) the person- (i) performs an employment task that has a particular property or characteristic; or (ii) is employed in an environment that has a particular property or characteristic; and (b) the particular property or characteristic- i) causes, or contributes to the cause of, the personal injury; and ii) is not found to any material extent in the non-employment activities or environment of the person; and (iii may or may not be present throughout the whole of the person's employment; and (c) the risk of suffering the personal injury- (i) is significantly greater for persons who perform the employment task than for persons who do not perform it; or (ii) is significantly greater for persons who are employed in that type of environment than for persons who are not. (2A) [Repealed] 3) Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is- (a) of a type described in Schedule 2; and b) suffered by a person who is or has been in employment- (i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or (ii) in an occupation, industry, or process described in that schedule in relation to that type of personal injury. (3A) To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense. (4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c). (4A) This Act covers personal injury caused by a work-related gradual process, disease, or infection only if- a) the exposure to the gradual process, disease, or infection actually occurred in New Zealand; or b) the person concerned was ordinarily resident in New Zealand when the exposure actually occurred. Personal injury caused by a work-related gradual process, disease, or infection does not include- a) personal injury related to non-physical stress; or (b) any degree of deafness for which compensation has been paid under the Workers' Compensation Act 1956. (6) Subsection (7) applies if, before 1 April 1974, the person- (a) performed an employment task that had a particular property or characteristic; or (b) was employed in an environment that had a particular property or characteristic. (7) The circumstances referred to in subsection (6) do not prevent the person's personal injury from being personal injury caused by a work-related gradual process, disease, or infection, but he or she does not have cover for it if section 24 or section 361 applies to him or her. Position of the Appellant [34] Ms Woodhouse, at the hearing stated: .. the issue today is whether Ms Trevarthen's condition, Mesothelioma, can be covered as an accident under the Accident Compensation Act 2001. Traditionally the Corporation has treated these cases with a view that the claimant's exposure to asbestos must have occurred in the course of employment, that is it needs to be linked to a period of paid employment. This of course has ended in some fairly inequitable results drawn between claimants who had exposure in the course of work and those who have not which are deemed secondary exposure victims. [35] Ms Woodhouse continues: ... So we submit that the current Act allows cover to extend to those who have had exposure under the accident provisions in section 25. The Corporation now accepts that Mesothelioma is caused by (inaudible 10:13:27) asbestos inhalation. ... So the first issue today is whether Mesothelioma is a personal injury under the Act or conversely as the Corporation asserts, if it is excluded by section 26(2) The second issue is whether the elements of section 25 are met and specifically in this case whether there was a specific occasion of inhalation. So the first issue pertains to the cross appeal by the corporation. ... So sub-section 2 reads, "Personal injury does not include personal injury caused wholly or substantially by gradual process, disease or infection unless it's provided for in the carve out divisions of section 20 (e) to (h)." It is submitted that the wording in this provision does not serve to exclude Mesothelioma as it is caused wholly by asbestos inhalation. It is submitted that conversely the provision seeks to exclude what are deemed idiopathic diseases that are diseases that have no known aetiology and arise spontaneously and include diseases that have an external intervening event that leads to the condition. In this respect Mesothelioma clearly falls into the latter category whereby the asbestos which is the intervening event or agent is wholly responsible for the condition and but for the asbestos inhalation we would not have the cancer. [36] Ms Woodhouse refers to the decision of Allenby v H. [37] In her written submissions Ms Woodhouse states: 3.6 On 18 April 2016 Darrel Read, Team Manager at ACC, agreed with the recommendation noting 'mesothelioma by definition can only be considered a personal injury caused by employment. While the decision is legislative and not clinical I do think it would be advisable to also get comment from Dr Mongiatti as well'. [38] Ms Woodhouse refers to the fact that this matter was referred to Dr Monigatti, who provided comment dated 18 April 2016, which stated: I think you will find that any personal injury can be covered as a PICBA as well as RGPDI provided the relevant provisions of the Act are satisfied. Lead poisoning in a child from eating lead pain scrapings on a particular day is an example. What Ms Trevarthen has to do to substitute the claim is to trace her mesothelioma to the inhalation of asbestos fibres on a specific occasion in childhood. ... [2011] NZSC 70. [39] Ms Woodhouse in her written submissions states: 5.2 The distinction between accident and disease originated from the decision in 1967 to increase the scheme's affordability by excluding cover for both sickness and disability. Lawmakers did not differentiate between naturally occurring and anthropogenic disease, relying instead on an exception of work-relatedness. Despite this initial distinction, the extension of the scheme to embrace both illness and other incapacity was expressly contemplated.2 [40] She continues: 5.4 Cover for anthropogenic harm would be entirely in accordance with the principles of the ACC scheme: the first, 'community responsibility', is founded on the idea of social solidarity and recognises an obligation to support the incapacitated in return for collectively benefiting from the productive work of individuals. The second principle, 'comprehensive entitlement', follows from the first and emphasises that, contrary to tort law, the cause of incapacity is irrelevant. It is the incapacity itself which is in issue and which attracts compensation. [41] In her submission relating to mesothelioma as a personal injury under the Act Ms Woodhouse states: 5.6 Conversely the Corporation has stated that mesothelioma is a disease and therefore is excluded from cover by virtue of s 26(2): Personal injury does not include personal injury caused wholly or substantially by gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). 5.7 In this case mesothelioma is not caused by a disease, it is the disease. Mesothelioma is caused by the inhalation of asbestos fibres on a specific occasion. Reviewer Lock explicated this premise in the review decision, noting: If the evidence establishes that the mesothelioma was caused by the inhalation of asbestos fibres then the mesothelioma must be viewed as a personal injury, in and of itself. The cause of the mesothelioma would then not be due to an idiopathic disease, but rather due to an external, non- disease related agent. [42] Ms Woodhouse refers to the paragraph of Reviewer Lock's premise for his decision referred to above and states: New Zealand Law Commission of Enquiry into Compensation for Personal Injury, Compensation for Personal Injury in New Zealand Report: Report of the Royal Commission of Inquiry (Government Printer, Wellington 1967) para 17 [ Woodhouse rep 3 Ken Oliphant "Beyond Woodhouse: Deiving New principles for Determining ACC Boundary Issues" (2004) 35(4) VUWLR 915, 916. 5.8 Without the asbestos exposure, there would not be the development of mesothelioma. Causation is not at issue in this regard." [43] Ms Woodhouse also deals with the matter of Ms Trevarthen's exposure to asbestos and relies on the following matters: Counsel for the respondent at the review hearing stated: It is not an absolute given, in my submission, that it was caused by the asbestos but it is accepted that, given those percentages it's highly likely. She refers to Dr Reid's assessment that "it is highly likely that this case was caused by asbestos exposure, either in a para occupational setting (exposure to her father's work clothes), or occupational, (exposure to asbestos present at place of work)". Mrs Trevarthen's evidence indicated she was exposed to asbestos via her father. . Ms Trevarthen's father was an electrician, an occupation known to have high exposure to asbestos. There was a strong temporal association between Ms Trevarthen's asbestos exposure and subsequent development of mesothelioma. . The development of mesothelioma has a high correlation with asbestos exposure. Her father was an electrician for the company Grover and Trevarthen and her evidence is that she used to hug her father when he returned home in his work clothes. . In Ms Trevarthen brief of evidence provided states she: In particular, I vividly remember breaking particle boards, pipes and much more while playing to build things while on site with dad as I was a bit of a tomboy when young. 4 See also Schedule 2 claims, where the link between asbestos exposure (at work) and mesothelioma attracts cover automatically, without proof of causation. . Electricians are among the group of occupations to have high exposure to asbestos. Counsel refers to an article "Lung Cancer Smoking and Exposure to Asbestos in New Zealand" W I Glass, I K A Wachi, N Pearce, Journal of Occupational Health and Safety. . Ms Trevarthen's evidence provides temporal framework that aligns with the development of mesothelioma. Dr Reid notes: There is a latency between initial exposure and disease of 15-60 years, with a mean of 40 years. Sen D, Occupational Medicine (2015) 65 (1) at 6-14. This range would cover para-occupational exposure as a child and occupational exposure as a young adult. All experts involved are in consensus that mesothelioma is generally precipitated by inhalation of asbestos. . Other authorities also confirm asbestos is the principle agent in the aetiology of malignant mesothelioma - counsel refers to the Cancer Society of New Zealand. . Counsel also refers to the decision of Ambros which approved in principle Atkinson v Accident Rehabilitation and Compensation Insurance Corporations which outlines that it is open to the Corporation to draw "robust inferences" as to causation if there are general scientific studies that point to causation as a statistical possibility. [44] Ms Woodhouse also refers to mesothelioma arising from a single occasion: 5.20 The rationale underpinning the Corporation decision is that Ms Trevarthen's mesothelioma 'developed over time rather than from a specific occasion'. Implicit in this is that mesothelioma is most appropriately defined as a gradual process condition. 5.21 At this juncture it is necessary to decline a gradual process condition from a personal injury by accident, as s 25 excludes cover for conditions caused wholly or substantially by a gradual process condition. . . . 5.24 Mesothelioma is distinguished from a gradual process condition as it does not require incremental exposures to give rise to the condition, conversely it may arise from low level exposure. [2002] 1 NZLR 342. [45] She refers to Dr Reid's report where he states: While there is a relationship between higher asbestos exposure and shorter latency period, there is no minimum exposure level below which there is no risk of developing mesothelioma. [46] Ms Woodhouse refers to the fact that Dr Monigatti agrees that low levels of exposure can give rise to mesothelioma noting when he noted: 5.25 ... 'Dr Reid states there is epidemiological evidence that low levels of asbestos exposure can result in mesothelioma, as during home renovations, and the exposures documented would be considered sufficient, which is not in dispute'. This aligns with the ACC review of asbestos related disease dated June 20046: Even short term occupational exposure may cause mesothelioma suggesting that the association is not dose related. [47] At para 5.30, Ms Woodhouse refers to Dr Glass' report who supports Ms Trevarthen's claim and outlines: Given there is no threshold one does not need to argue the necessity for more than one exposure as causative, other than from a "greater risk" viewpoint Furthermore where there are multiple exposures as is likely in the case of Ms Trevarthen, "any one" can be seen as causative and "which one" is not material. Nor from a practical point of view can that "one event" be identified. [48] Ms Woodhouse refers to the decision of Sam v Accident Compensation Corporation where she states, "the High Court considered the approach to causation in the context of multiple causes". However, she acknowledges in the footnote: It is acknowledged that Sam concerned s 25(1)(a) which references 'a specific event'. However it is submitted this can be easily analogous to specifically 'a specific occasion' under s 25(1)(b). [49] Ms Woodhouse continues: 5.34 The Court is not likely to sanction such a plainly unfair result unless it is unavoidable through the words of the statute. This aligns with the generous interpretation direction from the Court of Appeal. 5.35 This is also consistent with the recent comments from the Hon. Kos J in the decision of Murray v Accident Compensation Corporations: ACC Review, Asbestos - Related Disease Issue 1 1 at 2. CIV 2008-485-829 [2008] NZHC 1680. Harrild v Director of Proceedings [2003] NZCA 125. [36] In a recent decision I respectfully suggested that the principle stated by Richardson J in Accident Compensation Corporation v Mitchell, that the 1982 Act be given a "generous unniggardly interpretation", still had application despite the more crystalline legislative drafting that has followed in later versions of the Act. I suggested that lines of exclusion in a social welfare context needed to be drawn clearly. Expectations which were the "fair and reasonable product of statutory language and ... consistent with the overall statutory purpose should not be read down except by language of the clearest kind". 5.36 In Allenby v H the Supreme Court injected the notion of consent into the definition of "accident" noting: [82] ... Given the history of the legislation and the lack of anything to indicate that any pregnancy which does not result from rape or medical misadventure is to be covered, the definition of "accident" must be adjusted for the particular context, as the interpretive section, s 6, enables. [93] At first blush this distinction might appear dubious in light of the definition of accident. The definition makes no distinction between force to which the recipient consents and force to which she does not consent. But s 6 of the 2001 Act makes it clear that, as is conventional, the definition of "accident" in s 25 applies only if the context does not otherwise require. In the present very unusual and difficult context, I consider the definition of accident cannot apply without some adjustment. [50] In her oral submissions, Ms Woodhouse refers to the decision of Allenby,' a Supreme Court decision, where it was held that pregnancy was a personal injury in the circumstances where pregnancy was exclusively the product of rape that being an accident or medical misadventure. She states (p 10 Transcript of Proceedings): ... So coming back to the present case which is directly analogous we have external intervening act of asbestos inhalation that subsequently leads to disease. In the absence of the intervening event this would not constitute a personal injury just like pregnancy wouldn't in the absence of the accident. It is submitted that the Reviewer's findings were correct in this respect and recognising that Mesothelioma is a personal injury as it is caused by external agent. In this regard it is submitted that Mesothelioma can clearly be defined as a personal injury under the Act and is not excluded by this section. [51] Ms Woodhouse also expands further on the condition of asbestosis and states: For example a condition like asbestosis which is also caused by asbestos operates very differently so asbestosis with each exposure that you have you'll increase the severity of the condition. In my mind that's what is appropriately called a 9 Allenby v H [2012] 3 NZLR 425 (SC) cumulative effect. Mesothelioma does not operate like that. In my mind it's akin to if you hold up a gun with a Russian roulette each occasion you're increasing your probability of getting the bullet but that is not to say that each occasion contributes proportionately. . . . So the necessity of pinpointing the specific occasion becomes of less relevance because we've already established relation. To my mind, to pinpoint a specific occasion serves to determine if something is accident related, or not, yet in this regard we've come from the other end, we've established that the inhalation caused the cancer. [52] Ms Woodhouse concludes her oral submissions at page 17: ... in my submission, we don't need to ascribe a time or place because we know that it happened, that's an inescapable conclusion, she wouldn't have had Mesothelioma but for the information of these asbestos fibres, and really that's all my submissions. The Position of the Respondent [53] Mr Paul Radich QC, Counsel for the Corporation, provided written submissions and spoke to these at the hearing. [54] Mr Radich, also defines the issues to be determined on the appeal (and cross appeal) these being: [a] Whether mesothelioma amounts to a personal injury "under s 26". [b] If so, whether there is sufficient evidence that Mrs Trevarthen's mesothelioma was caused by asbestos inhalation; and [c] If so, whether there is sufficient evidence that mesothelioma was caused by the inhalation of asbestos "on a special occasion" as required under s 25(1) (b). [55] Mr Radich provided a one page handout at the hearing as a systematic way of showing the relevant provisions. Included for the purpose of this decision is a copy of the handout provided. s 20(1) A person has cover for personal injury if he or she (a) suffers personal injury in NZ; and (b) the personal injury is any of the 26(1) Personal injury means: kinds of injuries described in s a) the death of a person; 26(1)(a) or (b) or (c) or (e); and (b) physical injuries suffered by a (c) the personal injury is described in person, e.g. a sprain; any of the paragraphs in subs(2) (c) mental injuries suffered because of personal inj (e) damage to dentures of prostheses (2) Subs (1)(c) applies to- (a) personal injury caused by an accident to the person b) personal injury that is treatment (2) Personal injury does not_include injury suffered by the person; personal injury caused wholly or c) treatment injury under s 32(7) substantially by a gradual process, d) personal i I injury that is disease or infection unless it is personal consequence of treatment for injury of a kind described in s 20(2) (e) another personal injury; to (h) (e) personal injury caused by a work- A It is a disease and it is not within the related gradual process, disease carve-outs .. not personal injury or infection suffered by the person; s 30(1) Personal injury caused by a work- related gradual process, disease or infection means personal injury. f) personal injury caused by gradual (a) suffered by a person; and process etc that is treatment b) caused by a gradual process, injury; disease or infection; and (g) personal injury caused by gradual c) caused in the circumstances process etc that is consequential described in subs (2) on personal injury; (h) personal injury caused by gradua (2) The circumstances are that the person process etc. that is consequential performs an employment task or is on treatment given. employed in an environment that has a particular property or characteristic ... $ 25(1) Accident means (3) Includes personal injury of a type (a) a specific event or a series of described in Schedule 2 [which includes events, other than a gradual mesothelioma] suffered in an process involving e.g. the employment environment. application of fore. (b) the inhalation of any solid, liquid gas or foreign object on a specific occasion. B The evidence does not support a conclusion that the mesothelioma was caused by the inhalation of asbestos on a specific occasion . . not an accident [56] In his introduction to this topic he sets out in his written submissions the following: 7. Section 20(1) and (2)(a) together provide that a person has cover under the Act for a personal injury if the personal injury was caused by an accident to the person. 8. Personal injury is defined in s 26(1)(b) as "physical injuries suffered by a person including, for example, a strain or a sprain". 9. Section 26(2) excludes expressly from this definition "personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h)". 10. In other words, a disease is covered under the Act only if the case falls within the categories enumerated in s 20(2)(e) to (h). The parties agree that the s 20(2)(e) to (h) carve outs are not applicable in this case. 11. ACC's position is that Ms Trevarthen's physical afflictions were caused by her malignant pleural mesothelioma which, being a type of cancer, is a disease. On that basis alone, s 26(2) precludes cover under the Act. [57] Referring to his handout (see above), Mr Radich refers first to the fact that the two points made by the Corporation, marked in green, being A on the right-hand column which states: A It is a disease and is not within the carve outs ** not personal injury. and B, in the left-hand column at the foot of the page states: The evidence does not support a conclusion that the mesothelioma was caused by the inhalation of asbestos on a specific occasion ** not an accident. [58] Mr Radich refers to the left-hand column s 20(1) and states (p 17 transcript of proceedings): ... so first of all, the risk of going back to absolute basic a person has cover, this is section 20, cover for personal injury if there is a personal injury suffered and that it's of the kind described in section 26(1)(b), (c) or (e) so the arrow then goes across on this diagram to section 26 and it tells us what personal injury means, death, physical injuries, mental injuries, those things aren't in play in this case. [59] Mr Radich then refers to s 26(2) on the right column which states that personal injury does not include personal injury caused wholly or substantially by a gradual process, disease or infection unless it is a personal injury of a kind described in s 20(2)(e) to (h). He states: ... I think everybody agrees that mesothelioma is a disease, a terrible one, but it's a disease unless it's a personal injury described in 22(e) to (h). My learned friend mentions the notion of a carve out and that is what this is telling us, so the area doesn't line up perfectly here but it goes back across to section 20 what are the type of injuries, the personal injury caused wholly by disease, what are the sort of things that are covered and that then tell us, if we look at (e) to (h) work related gradual process and then there are some other things that aren't relevant there, (f), (t) and (h) gradual processes, treatment injury, a gradual process consequent on personal injury, personal injury caused by a gradual process that is consequential on treatment. If we look at the matter that's in the red box so that tells us, well this is covered, personal injury caused by disease, Mesothelioma, or infection suffered and that in turn takes us to yet another arrow to section 30 and that tells us that personal injury caused by a work-related gradual process disease or infection means personal injury and is has been suffered by a person, caused by a gradual process in the circumstances in subsection 2, and I paraphrase here a little bit, if Your Honour will forgive for that because the sections are more wordy, but the essence of them is that the characteristics of the person performs in their employment past, he has particular property or characteristics. Secondly, and this is important in my submission, it includes personal injury described in schedule 2, now that includes expressly Mesothelioma, one of the first entries in schedule 2 in the Act is Mesothelioma, so we know that Mesothelioma is a disease, we know that it is directly and expressly within the types of injuries that are in section 22(e) to (h) and thereby section 30, we know that the Act is telling us that you can have cover for that if it's in a work environment. And just to complete the diagram, the last arrow, is at the very left- hand side of the page, and just before I go there, if I can pause and say in green are the two points that ACC would make. The first of them is at (a) it is there because it relates to the, on the right-hand side of the page the matters in that box, and I'll go to the submissions on this point, ACC says it is a disease, it's not within the carb[sic]-Out everyone agrees that's the case, it's not an employment related condition therefore it is not personal injury and the Act is very clear about that, for better or worse, whatever the reasons for it, the Act is a specific scheme that draws the line and that's a point. Secondly, if I come out now to that, the right hand arrow that drops down the page to section 25, this is the point that my learned friend makes and for the appellant that said, okay if it's not a disease then we say, looking at it a different way, you should look at it differently and in fact it's a personal injury per se, but don't think about the disease framework, think about it with a different set of lenses on because the appellant says in fact it's under section 25( 1) it is an accident through the inhalation of an object on a specific occasion and at (b) there in green at the bottom, I've just said that ACC's position is that the evidence here doesn't support a conclusion, that it was inhaled on a specific occasion. So that just schematically the issues that are before the Court, and if I may Ma'am, I turn to the submissions for ACC now and just identify some of the pertinent aspect of them, I certainly won't read them but I'll just identify and take Your Honour, if I may, to just the odd exhibit and a couple of a cases just to explain the points that are made. I think the introduction needn't be gone through because we have discussed that so the first issue, this is the cross-appeal issue, can Mesothelioma amount to personal injury, can you, and that's the point I made last by reference to the diagram, it's that far left-hand arrow, but can you look at it purely through that lens and point that's made here, and this is at around about paragraphs 8 to 1 1, is the point that I've mentioned by use of the diagram, that it's not within, I can use that term the Carb[sic]-Out, everyone agrees and at 1 1 that the point is that ACC says that the personal inflictions were caused by Mesothelioma, it's a type of cancer, it's a disease we've seen expressly through schedule 2 and the point here is that section 26(2) by those words, excludes it specifically. [60] Mr Radich refers to s 20(1)(2) and the paragraphs (e) to (h) and identifies that s 20(2) (e) relates to personal injury caused by disease (mesothelioma), or infection suffered which in turn takes us to another arrow (third on the page) to s 30 which states that the personal injury caused by work related gradual process or infection means personal injury. [61] Section 30(2) specifically refers to the circumstances relating to that personal injury. (62] Mr Radich submits that the essence of these sections is that the characteristic of the person performs in their employment gives that person particular properties or characteristics. [63] He continues that it is important in his submission to include personal injury described in Schedule 2 of the Act as mesothelioma "... so we know that mesothelioma is a disease". He continues: ... we know that it is directly and expressly within the type of injuries that are in section 20(2)(e) to (h) and whereby section 30, we know the Act is telling us you can have cover for that if it's in a work environment. [64] Mr Radich then refers back to the points that the Corporation would make and states: The first of them is at A and the Corporation says it is a disease and is not within the carve out everybody agrees that's the case, it's not an employment relating condition therefore it's not a personal injury and the Act is very clear about that, for better or worse, whatever the reasons for it, the Act is a specific scheme that draws the line and that's the point. [65] Mr Radich then refers to the arrow on the left-hand side that drops down the page to s 25. and states: This is the point that my learned friend makes and for the appellant that says, okay if it's not a disease then we say, looking at it a different way, you should look at it differently and in fact it's a personal injury per se, but don't think about the disease framework, think about it with a different set of lenses so on because the appellant says in fact it's under section 25(1) it is an accident through the inhalation of an object of specific occasion, and at paragraph (b, at the bottom of the page) I've just said the ACC's position is that the evidence does not support a conclusion, that it was inhaled on a specific occasion. [66] In respect in part to the cross-appeal, Mr Radich takes issue in his written submissions with the words of the reviewer where he states: The reviewer accepted that "The Act expressly excludes from the definition of personal injury a condition that is caused wholly or substantially by disease", at 14, however relying on the decision of Stok v Accident Compensation Corporation [1995] NZAR 395, he concludes, at 16, that "where mesothelioma is caused by asbestos inhalation it is not excluded from the statutory definition of personal injury. In such circumstances it is the asbestos that causes the mesothelioma, as opposed to an idiopathic cause, bringing the condition within the statutory framework of a personal injury". [67] Mr Radich refers to the decision of Stok where the appellant's home was spray coated with asbestos exposing her over many years to the "fall out" of asbestos fibres. It was noted she developed mesothelioma and claimed cover under the Accident Compensation Act 1982. Mr Radich states that the definition of "personal injury by accident" in s 2 of the 1982 Act was broad but excluded "damage to the body ... caused exclusively by disease". He continues: 13. ... It is said, at 403, that ACC initially argued that, because mesothelioma was a disease, section 2 of the 1982 Act precluded cover. However, during the course of the argument, it appeared that ACC abandoned that submission. The Appeal Authority concluded at 403: It seems to me, but for the appellant's inhalation of asbestos fibres, that she would not have suffered the mesothelioma. Therefore I consider that the exclusion does not apply because her condition is not caused exclusively by the disease, but rather the cause is exclusively the inhalation of asbestos fibres which, in turn, has produced mesothelioma 14. ACC's view is, respectfully, that the decision in Stok is wrong and the reviewer's reliance on the decision was misplaced. The damage to Mrs Stok's body was caused exclusively by disease, namely, her mesothelioma. The fact that the mesothelioma was caused by the inhalation of asbestos fibres over a protracted period does not detract from the fact that her personal ailments were caused by the disease 15. In any event, even if it was decided correctly, the 1982 Act was superseded by the Accident Rehabilitation and Compensation Insurance Act 1992, which was emphatic and restrictive as to the circumstances in which a person could obtain cover for a disease." 16. Section 10 of the 1992 Act provided that: "For the avoidance of doubt, it is hereby declared that personal injury caused wholly or substantially by 10 Moreover, the statutory language changed from excluding personal injury caused by "exclusively" by disease, under the 1982 Act, to excluding personal injury caused "wholly or substantially" by disease, under the superseding legislation. gradual process, disease, or infection is not covered by this Act" except in prescribed circumstances, which mirror the existing s 20(2)(e) to (h) carve outs. [68] Subsequently, Mr Radich then refers to Ms Trevathen's position and states: 23. The appellant's position, at 5.4 of its submissions, is that cover for anthropogenic diseases would be in accordance with the principles of the Act. There may well be an argument, as a matter of policy, that the legislation ought to make greater accommodation for diseases, but as a matter of statutory interpretation the position is c A disease, irrespective of whether it is idiopathic or anthropogenic or otherwise, is not covered under the Act unless it falls within one of the specified carve outs. His Honour Kos J has previously remarked "cover under the Act is the product of careful and crystalline drafting by legislators:" [69] Mr Radich continues: 24. The approach taken in the Review Decision, and supported by the appellant, would deprive s 26(2) of its meaning and would introduce distinctions between different types of diseases that have no mandated basis. 25. Ms Trevarthen's physical suffering was caused wholly or substantially by a disease, namely, malignant pleural mesothelioma. It is submitted that, on that basis alone, there is no cover under the Act 26. If, despite the language of s 26(2), the Court is minded to find that mesothelioma constitutes a personal injury for purposes of's 20 of the Act ACC's position is that there is insufficient medical evidence that the mesothelioma was caused by the inhalation of a foreign object "on a specific occasion", as required under s 25(1)(b) of the Act. [70] Mr Radich stated further at the appeal hearing in respect to the Stok case (p 21 transcript of proceedings): ACC says, with great respect, that the decision is wrong, that the damage to Mrs Stok's body was caused by the disease, it was caused by her Mesothelioma and the fact that Mesothelioma is caused because you inhale fibres and it doesn't detract from the fact that the ailments were caused by the disease. We might fall over and hurt our ankle because of a wonky footpath but that doesn't make the footpath the injury, the injury is what happens because of, in this case the decision. The point I will go on to make is that in any event it's clear that the statutory scheme seeks very deliberately to exclude disease, and I mention in a moment the parliamentary debates that make that point. [71] Counsel also refers to the Allenby Supreme Court decision referred to by counsel for the appellant. [72] It is noted this related to "medical misadventure" (now termed treatment injury). Counsel refers to paragraphs [64] and [65] of that decision: [64] Returning again to s 20(2), it seems that a distinction must be intended as between para (b): "Personal injury caused by medical misadventure suffered by the person". And para (f): "Personal injury caused by a gradual process, disease, or infection that is personal injury caused by medical misadventure suffered by the person". In the first situation, in para (b), there must be a medical misadventure, that is, for our purposes, a medical error; and it must give rise to a physical injury. The Solicitor-General gave the example of the surgeon having amputated the wrong (good) leg of the claimant patient. [65] In the second situation, in para (f), the personal injury must both (a) be caused by medical misadventure and (b) it must also take the form of a gradual process, disease or infection. The Solicitor-General suggested the example of gangrene consequent upon the amputation of the wrong leg. The gangrene could in this example be regarded as a personal injury because it would not have been suffered but for the severing of the leg. So it would also fit within para (g). The gangrene is certainly a disease or infection but, as well, it would seem to come within the term "gradual process". The Solicitor-General was, however, also helpfully able to supply an example of a gradual process which would not also be termed either a disease or an infection - an adhesion caused by excessive (negligent) radiation treatment. There is little difficulty in accepting that this would be a personal injury. [73] Mr Radich states (p 22 transcript of proceedings): You'll see that the Court here was looking at the words of the provisions that we're dealing with the only difference to the provisions, the version they were looking at and the one we look at, is that medical misadventure was the term then used. Of course it's now treatment injury but otherwise the scheme's the same. Now, they look at section 20(2) as we were in the diagram and then they look at paragraph (f), this is at line 40, and then if I could take Your Honour to paragraph 65 and they say this, "In the second situation para (f) the personal injury must both (a) be caused by ..." treatment injury in that case, but this is the point "(b) it must also take the form of a gradual process disease or infection." So what they're saying is that personal injury takes the form of disease and this is in response to my learned friend's point that you separate them. In fact what this Court is saying is that through these provisions the personal injury is in form of disease, so the personal injury is in the form, in this case, of the Mesothelioma and I just refer to that for that terminology. Incidentally the Court did find it not relevant to us that pregnancy can be through a failed process and they were looking at (f) because it was a treatment injury issue, can be injury. [74] Mr Radich refers to his submissions in respect to the 1982 and 1992 Acts. [75] He also refers to the Woodhouse report (Tab 6 of his Casebook) which was referred to by the Honourable W F Birch. [76] Mr Radich referred in particularly to page 113 of that report, Paragraph 289 (general Principle): (a) The general basis for protection should be bodily injury by accident which is undersigned and unexpected so far as the person injured is concerned, but to the exclusion of incapacities arising from sickness or disease. (e) On the other hand incapacity should be excluded which resulted from a condition of disease or sickness; or a sudden psychological change in the course of disease or sickness; or a psychological event occurring during activity which itself was normal and uneventful. [77] In respect to the appellant's position at 5.4 of her submissions that cover for anthropogenic diseases should be in accordance with the principles of the Act. Counsel acknowledge while this may be a very good policy argument he states: ... I can see good sense from a policy point of view but as a matter of statutory interpretation in the submission of ACC it is clear. A disease, irrespective of whether it is idiopathic or anthropogenic or otherwise, if there is otherwise, isn't cover unless it falls within one of the specific carve outs and there is very clear words around those carve outs. [78] Counsel also refers further to the decision of Justice Kos a decision of Murray v Accident Compensation Corporation" at tab 7 of his documents. In this paragraph Justice Kos refers to an earlier decision of Gendall J and states at paragraph 2 of the bundle of documents: [2] The applicants seek to argue that the decision of Gendall J in Accident Compensation Corporation v Vandy is wrong. Alternatively, that it may be distinguished. Vandy held that to be eligible for weekly compensation under s 100(1)(a) of the Act, a person had to be in employment both at the time of injury and immediately before incapacity set in. It was recognised that this interpretation could produce unfairness. Gendall J said: It is of course the case that the legislative policy is not to be undermined by an ungenerous or niggardly approach and a broad, rather than restrictive, interpretation is necessary. But where, as here, the meaning of the statutory provisions could be interpreted only in one direction, despite 11 Murray v Accident Compensation Corporation [2013] NZHC 2967 understandable notions of what might be "fair" in an individual case, the remedy if there is to be one has to be provided by Parliament. [79] Counsel goes on to refer also to paragraph [36] of the Kos judgment which states: [36] In a recent decision I respectfully suggested that the principle stated by Richardson J in Accident Compensation Corporation v Mitchell, that the 1982 Act be given a "generous unniggardly interpretation", still had application despite the more crystalline legislative drafting that has followed in later versions of the Act. I suggested that lines of exclusion in a social welfare context needed to be drawn clearly. Expectations which were the "fair and reasonable product of statutory language and ... consistent with the overall statutory purpose should not be read down except by language of the clearest kind" [80] Counsel also refers to paragraph [69] of that decision which states: [69] The outcomes under the present Act are unquestionably anomalous. It was not suggested otherwise before me. No Judge could frame common law duties in so inconsistent and erratic a fashion. Nor could insurers achieve such outcomes in an informed market. But cover under the Act is the product of careful and crystalline drafting by legislators. The meaning and effect of the statutory words in issue is quite clear. [81] Applying this to the review decision Mr Radich states: If we would just look at the inhalation of fibres and if you have evidence on the occasion of such an accident the approach would just mean that all the provisions relating to disease were irrelevant. They may well be ignored, pretend they're not there because you've got a specific statutory scheme before you even look at the accident, before you even look at inhalation, it looks at personal injury, what it is and what it is not and for better or worse there's a set of words to tell us very clearly, that disease, which includes and is defined as mesothelioma and the schedule is out, unless it's within (e) to (h) of's 20 and unfortunately we agree it's not. [82] Mr Radich goes on to look at the submission made by him on page 6 of the filed submissions under the heading "Whether there is sufficient evidence that mesothelioma was caused by asbestos inhalation". He states that the Corporation accepts, as it did at the review hearing, it is more likely than not that the appellant's mesothelioma was caused by the inhalation of asbestos fibres. [83] He refers to the fact that it is not disputed that her father was an electrician and that she spent time at his workplace and that she would also hug her father when he returned home. [84] However, as Mr Radich states in his oral submission: ... The point is that there is no specific evidence about inhalation by her of fibres but there is undisputed evidence and ACC takes no issue with that that there is a strong, direct correlation between mesothelioma and exposure to asbestos. [85] He also refers to the report of Dr Glass and the written evidence provided by Ms Trevarthen which refers to the particle board and hugging her father. He states however: ... again this isn't direct evidence of course and you'll see it comes through a telephone conversation with her sister-in-law where they look at places of Ms Trevarthen's work, and at the bottom of the page, a fish and chip shop, a pharmacy. [86] Mr Radich also refers to the fact that there is talk (p 49 BofD) of Dr Glass' report that she worked at DB Breweries and that place was known to Dr Glass because he visited there with medical students in the late 1970s and states: Asbestos lagging was the feature of pipe insulation. Dr Glass says it's not inconceivable she could have passed through some other parts of the factory. [87] Dr Glass also refers to her as a sales rep and that she would have been in and out of a range of work premises and that it is perfectly feasible she would have been exposed to asbestos. [88] Mr Radich refers to Dr Glass' last comment at page 51 of the bundle of documents: Furthermore, where there are multiple exposures as is likely in the case of Mrs Trevarthen "anyone" could be seen as causative and "which one" is not material. [89] Mr Radich, in his oral submissions, refers the report from Dr Monigatti (p 52 BofD), which he says confirms the Corporation's position, as illustrated in Dr Monigatti's reference to the report of Dr Reid. Dr Reid (p 46 BofD), states there are no minimum exposure levels and Dr Monigatti comments on that statement, noting: Dr Glass appears to be arguing for causation through multiple exposures to asbestos at home and/or work. I see nothing in his report to indicate that Ms Trevarthen's mesothelioma was more likely than not caused by a single exposure to asbestos instead. [90] Mr Radich goes on to say that the Corporation does not support the Reviewer's conclusion on page 18 of the review decision, when the Reviewer said: It is not possible to simply presume that due to the diagnosed of mesothelioma Mrs Trevarthen, as a matter of fact inhaled asbestos fibres. He starts with that proposition and then says, there's actually no evidence of a particular occasion either. [91] Mr Radich states that the Corporation accepts his (Mr Radich's) written submissions (para 29) that if one has mesothelioma, one has it because of asbestos inhalation, as it happens in 95% of cases. [92] Referring to the Reviewer's conclusion in the review decision, Mr Radich states: ... it is not possible to simply presume that due to the diagnosed mesothelioma Ms Trevarthen, as a matter of fact, inhaled asbestos fibres ... there is no evidence to confirm that asbestos was present at the relevant work sites or on her father's clothing. The evidence merely touches on potential exposure and is not sufficient to establish cover. As such, and for that reason alone the review cannot succeed. [93] In his submissions, which were reaffirmed at the hearing, Mr Radich states: 31. ACC respectfully disagrees with this analysis. Given that the medical experts agree that around 95% of cases of mesothelioma are caused by the inhalation of asbestos fibres, as a matter of logic it must follow that it is "more likely than not" that Ms Trevarthen inhaled asbestos fibres during her childhood. 32. Nevertheless, ACC's view is that Ms Trevarthen could not have cover because there is insufficient evidence that the mesothelioma was caused by the inhalation of asbestos fibres "on a specific occasion". It may well be that this was the point that the reviewer was seeking to make. [94] Mr Radich's submissions continue under the heading "Whether there is sufficient evidence that the mesothelioma was caused by the inhalation of asbestos on a specific occasion" He refers to the fact that s 20(2)(a) provides that a person has cover for a personal injury if it was caused by an accident to the person. "Accident" is defined in s 25(1)(b) as the "inhalation of any solid, liquid, gas, or flying object on a specific occasion". [95] Mr Radich refers to Ms Trevarthen's position that there is no minimum exposure level below which there can be no risk of developing mesothelioma, in other words even low levels of asbestos exposure can give rise to mesothelioma. However. at paragraphs 5.28 and 5.29 of her submissions Ms Woodhouse submits that one exposure event can be causative of mesothelioma and that it would be arbitrary to have to pinpoint the occasion that gave rise to the mesothelioma. [96] In his written submissions Mr Radich states that Ms Trevarthen relies on Sam v Accident Compensation Corporation, but submits that decision is of no assistance here. The decision concerns a claimant who could not identify the cause of his condition, namely cerebral palsy. Mallon J offered an approach to establishing causation where there were possibly multiple causes. However, her Honour affirmed, at [24], that: The legal burden of establishing causation on the balance of probabilities remains on the claimant. [97] In that case the claimant was not able to establish any of the possible causes of cerebral palsy fell within a definition of an accident in the Act. [98] Mr Radich states: 37. Declining the claimant's application for leave to appeal to the Court of Appeal, Mallon J remarked at [8]: "There is a further difficulty with the appellant's claim. One of the possible causes of the cerebral palsy was placental disease. That raises the question of whether cover would be excluded under s 26(2) because it was an injury caused "wholly or substantially" by disease ... It appears to raise another hurdle for the appellant". Her Honour held also, at [7], that "the overall context is that the legislation covers injuries (or death) caused by accidents or medical misadventures. It does not cover illness or, with express exception, disease". This position was affirmed by the Court of Appeal. 12 [99] Mr Radich submits that s 25(1) uses the words "a specific event or a series of events" however counsel submits that s 25(1)(b) is the section for the focus. He refers 2 Sam v Accident Compensation Corporation [2010] NZCA 321 at [11]. to "the inhalation of any solid, liquid, gas, or foreign object on a specific occasion". This word "occasion" is stated by counsel as singular. He states: So even if it is accepted that the estate isn't required to prove which occasion it still needs to be proven that it was caused by inhalation on an occasion and no more than one occasion. This is emphasised by the use of the word "specific" [100] As stated in his written submissions: 38. In the present case, the parties agree that the mesothelioma was more likely han not caused by the inhalation of asbestos fibres. The issue is simply whether there is sufficient evidence that the mesothelioma was caused by the inhalation of asbestos on a "specific occasion". It is for the appellant to prove this on the balance of probabilities. 39. ACC accepts that there is a risk of developing mesothelioma where there have been low levels of asbestos exposure. ACC also accepts that "some mesothelioma patients report single exposure events". That is to say, ACC accepts that there is a risk of developing mesothelioma from a single incident of inhaling asbestos fibres. 40. However, the evidence indicates that, typically, "the risk of mesothelioma is considered to be proportional to the magnitude and duration of inhalation exposure to asbestos". In other words, mesotheliomais usually caused by the cumulative effect of the inhalation of asbestos fibres, not by a single inhalation. 41 On the evidence, although there is a possibility that Ms Trevarthen developed mesothelioma as a result of a specific, single inhalation of asbestos fibres, she - like the claimant in Bird v Accident Compensation Corporation" - has not provided sufficient evidence to establish this on the balance of probabilities. The medical evidence put forward by the appellant does not establish that it is "more likely than not" that her mesothelioma was caused by one specific occasion on which she inhaled asbestos fibres. [101] Mr Radich refers to Dr Monigatti's report of 15 August 2016 where Dr Monigatti states: Dr Reid states that there is epidemiological evidence that low levels of asbestos exposure can result in mesothelioma ... which is not in dispute. Dr Reid does not comment on the plausibility of causation by single exposure other than to say that one or two injections of asbestos into animals had been shown to cause peritoneal mesothelioma, without providing any detail as to dose or timing. I cannot see how this could be construed as evidence that pleural mesothelioma in a human is likely to be caused by the inhalation of asbestos on a single occasion. [102] Mr Radich continues: 13 Bird v Accident Compensation Corporation [2011] NZACC 26. 42. It is submitted that it is more likely than not that Ms Trevarthen developed mesothelioma as a result of the multiple exposures she reported. In contrast to s 25(1)(a) of the Act, which allows for an accident to occur as a result of a "series of events", s 25(1)(b) is confined to the inhalation of a foreign object "on a single occasion". 43. If the Court were to accept the claimant's argument that mesothelioma, despite being a disease, constitutes a "personal injury" and that the fact that a person has mesothelioma is evidence that asbestos was inhaled at least "on a single occasion" and therefore constitutes an accident, it would undermine the detailed legislative scheme concerning workplace-related asbestos inhalation. That is, instead of the claimant having to prove, for purposes of s 30, that he or she has mesothelioma and that he or she had been in employment involving exposure to asbestos or in an occupation or industry described in the schedule, the claimant would simply have to submit evidence of the diagnosis of mesothelioma. In other words, claimant in Bird would have succeeded. It cannot have been Parliament's intent to render the s 30/Schedule 2 framework redundant in this way. Submissions in Reply [103] In her oral submission, Ms Woodhouse refers to the decision of Bird, and states that the distinction in that case was that there is no evidence of exposure and referred to the fact that although there is a higher probability of mesothelioma arising through exposure there is also five percent of cases that do not. She states: ... And as we know it's generally contracted through disturbance of asbestos and it needs to be airborne so I don't agree that it's in the air naturally either. . . . I suppose my submission is there needs to be evidence of disturbance, you know, as of the asbestos in order to draw that strong inference that mesothelioma was due to that rather than a 5% that's unknown aetiology. [104] Ms Woodhouse also disagreed with Mr Radich's interpretation of the Sam decision. She stated in that case there were seven causes outlined, and that the appellant's counsel had argued that they would have cover even if there was no proof of natural cause. Ms Woodhouse stated: This case is different because we do have proof of actual cause and that ACC has accepted the cause of the cancer was due to asbestos. So in terms of the specific occasion there's a choice to interpret this in a narrow or a broad way. To reiterate my position there must be a specific occasion. Previous cases have said we don't need to pinpoint necessarily, this is detrimental to a claim, especially when causation is so firmly established, and this is not disputed. Discussion and Conclusion [105] Ms Trevarthen was confirmed with a diagnosis malignant pulmonary mesothelioma on 16 November 2015. The diagnosis was from Dr Richard Sullivan, Consultant Medical Oncologist from Canopy Cancer Care. He states "no known asbestos exposure". [106] Ms Trevarthen initially filed an accident compensation claim with the Corporation pursuant to s 30(3) of the Act which relates to personal injury caused by a work related gradual process, disease or infection. This was filed on 18 November 2015. This was declined by the Corporation on 11 January 2016 on the basis that the ACC is only able to provide cover under the Accident Compensation Act 2001 for a gradual process condition as a personal injury that is a result of work exposure - employment and other circumstances are not applicable for this claim. [107] It has been noted that subsequently a further application was filed, pursuant to s 25(b) of the Act relating to inhalation of a foreign object on a specific occasion. [108] In the cover assessment, the case coordinator states: Even if the exclusion described above does not apply, there is furthermore no record of inhalation of a foreign object on a specific occasion which has caused a personal injury (mesothelioma). The evidence provided to ACC is that Ms Trevarthen was probably exposed to asbestos dust while embracing her father on his return from work each day, or when she was taken by him to his work site/sites which was a frequent occurrence. There is no identifiable inhalation of dust on a specific occasion which causes a personal injury. Risk of injury is not sufficient to determine causation. [109] Eventually the application was also refused by the Corporation by letter dated 20 April 2016. [110] This matter went on review and the reviewer finding that mesothelioma caused by asbestos inhalation would meet the statutory definition of a personal injury. The reviewer dismissed the review as the evidence before him merely established a risk or possibility that Ms Trevarthen's diagnosed mesothelioma was caused by asbestos inhalation. [111] The reviewer stated in this case the evidence merely touched on the potential exposure and not on sufficient basis for cover. He continues: Furthermore even if one is to make a robust inference that asbestos inhalation has caused the mesothelioma this review could not succeed as there is insufficient evidence to conclude that the inferred inhalation falls within the statutory definition of an accident by inhalation and the reviewer accordingly dismissed the review application. [1 12] The position of the appellant is that Ms Trevarthen had a personal injury under the Act as a result of an accident pursuant to s 25(1) (b). It is the position of the appellant that mesothelioma is a personal injury under the Act. It is also the position of the appellant that mesothelioma is not caused by a disease but that it is a disease and that without asbestos exposure there would not be the development of mesothelioma. 113] The appellant is of the view accordingly that causation is not an issue in this regard and that s 25(1)(b) should be given a wide and liberal interpretation. [114] The evidence put before the review officer and the Court relied on Ms Trevarthen's statement that as a child, her father who was an electrician, would take her to some of his work sites and also that she would hug him when he came home. Accordingly, on the basis of Ms Trevarthen's submissions there was a strong temporal association between her asbestos exposure and subsequent development of mesothelioma. [1 15] Dr Glass noted a number of other possibilities of exposure. [116] The position of the appellant is although the wording of the s 25 of the Act referred to inhalation on a specific occasion this should be read in a broad context particularly given that Dr Glass is of the view that there is no threshold. [117] Mr Woodhouse notes from Dr Reid's report, which states that while there is a relationship between high asbestos exposure and a shorter latency period there is no minimum exposure level below which there is no risk to developing mesothelioma and this is in general agreed to by Dr Monigatti, occupational advisor to the Corporation. [118] Ms Woodhouse refers to the decision of Sam v Accident Compensation Corporation in the High Court, where there were multiple causes that had been referred to as potentially causing the injury and was of the view that this finding could be analogous to Ms Trevarthen's circumstances and each occasion of asbestos could be seen as causative and on which occasion became immaterial. [119] Ms Woodhouse states that Ms Trevarthen's claim is more meritorious as causation is not an issue and accordingly each exposure to asbestos could qualify as an accident in its own right. She is of the view that the provisions in the findings of Harrild v Director of Proceedings" as to the fact that the Act should be given a "generous unniggardly interpretation" should prevail and that the meaning of an enactment should be ascertained in terms of's 5 of the Interpretation Act 1999 in light of its text and purpose. Accordingly, it is the submission of Ms Woodhouse that the Act favours a broad interpretation to ensure rehabilitation to the maximum extent practicable. [120] For the respondent, Mr Radich accepts that both at review and in respect to this appeal that in all likelihood the basis for mesothelioma is likely to have originated from exposure to asbestos. It is accepted that the reality is that from the available medical evidence supports a finding that mesothelioma is predominantly caused by asbestos inhalation and Mr Radich refers to Dr Glass' report as well as those of Dr Reid and Dr Monigatti. [121] However, this does not mean that it is possible to simply presume that due to diagnosed mesothelioma that Ms Trevarthen in fact inhaled asbestos fibres and I accept that the evidence merely touches on potential exposure with respect to attending her father's work sites, or from his clothing, and the Court cannot make a robust inference based on the statistical likelihood that exposure meets the statutory definition of an accident. [122] I accept Mr Radich's submissions in this respect but while with a gradual process work environment, once the presence of asbestos is established the causation is no 14 [2003] NZCA 123. longer required. However, this specifically applies to those in an employment situations and the wording of the sections differentiates between work related situations, and others, who unfortunately have the same diagnosis. [123] I accept the criticisms of Mr Radich relating to the decision of Stok, on which Ms Trevarthen placed some reliance. This decision was pursuant to the 1982 Act which did not require a person to "suffer personal injury by an accident but merely an accident". [124] In addition, I accept the position taken by the Corporation in respect to the counter claim, that the reasoning by the Reviewer in respect to the review decision was wrong. [125] Mr Radich has, in his oral submissions, and through his provision of his diagram to the Court, referred specifically to the pathway through the sections involved in this hearing. Section 26(2) makes it clear that personal injury does not include personal injury caused wholly or substantially by a gradual process disease or infection unless it is a personal injury of the kind described in s 20(2)(e) to (h). [126] The only subsection that has relevance here is s 20(2)(e). However, the information before the Court makes it clear in this particular case, Ms Trevarthen's condition was not caused by work related gradual process. I accept the submission Mr Radich, that a disease is not interchangeable with the words 'personal injury", as the reviewer has attempted to establish and has subsequently been relied on by Ms Woodhouse. [127] A personal injury, pursuant to s 20(1), requires by its very nature to be the kind of injuries set out in s 26(1). None of these have application to the present case. [128] A personal injury must be as set out in s 26(1) and s 20(2). It requires, pursuant to s 20(2), to be caused by an accident to the person. Therefore, the only basis for Ms Trevarthen, is pursuant to s 20(1)(a), being a personal injury caused by an accident. [129] The application by Ms Trevarthen was made pursuant to s 25(1)(b), requiring the Court to find that the accident was the inhalation of any solid, liquid, gas or foreign object on a specific occasion. [130] Although Ms Trevarthen sought the Court to take a wide and robust interpretation of this section, I accept that submissions, particularly by the Corporation in referring to the decision of Justice Kos in Murray v Accident Compensation Corporation indicate the wording of the legislation has specific importance. As also noted by Gendall J in ACC v Vandy "it is important to look specifically at the statutory provision". [131] In this respect, I take into account the detailed submissions Mr Radich relating to the question of whether there is sufficient evidence that the mesothelioma was caused by the inhalation of the asbestos on a specific occasion. The Act requires there to be sufficient evidence that the mesothelioma was caused by the inhalation of asbestos on a specific occasion and I accept there is an onus on the appellant to prove this on the balance of probabilities. I accept the position of Dr Glass that given there may have been multiple exposures in the case of Mrs Trevarthen, but not that it is immaterial s 25(1)(b) is limited specifically to "on a specific occasion", and this must be established by Ms Trevarthen on the balance of probabilities. [132] As noted by Mr Radich s 25(1)(b) is confined to the inhalation of a foreign object on a single occasion and it is not the wording of s 25(1)(a) that is applicable. The Cross Application [133] As stated by both counsel their submissions also relate to the cross application filed by the Corporation. [134] The Corporation is not opposed to the decision made by the reviewer. However, the Corporation does not accept the reasoning of the reviewer. Conclusion [135] This appeal is a rehearing, as stated by the Act, not a re-endorsement of the reviewer's decision. I accept the submission of Mr Radich, that reliance for the decision based on considerably earlier legislation is unsafe. [136] In addition, the reviewer made a finding that if mesothelioma was caused by asbestos inhalation it would meet the statutory definition of personal injury. This position taken by the reviewer appears to rest solely on the Stok decision, which has no application to the present legislation and it is not binding. [137] Accordingly, although Ms Woodhouse, at the conclusion of the hearing sought to rationalise that there would still remain occasions when it would not be established that a person with mesothelioma had incurred a personal injury, the thrust of her submissions effectively was that the presence of mesothelioma simpliciter was sufficient basis for cover. [138] I accept the submissions of Mr Radich that the legislation has been drafted specifically to establish the differentiation between work related exposure and others who have contracted the disease. [139] It is accepted it is very unfortunate Ms Trevarthen contracted this disease. However, I find that the Corporation were correct in refusing cover on both the first and second occasions. In respect to the cross appeal by the Corporation I accept the submissions that the reasoning of the reviewer was incorrect as to the reasons to determine that this was a personal injury. On that basis, the cross application is granted. Notwithstanding, this decision of the Reviewer it is upheld in respect to the dismissal of the review application. [140] There is no issue as to costs. Judge J H Walker District Court Judge Solicitors: John Miller Law, Wellington, for the appellant Paul Radich QC, Barrister, Wellington, for the respondent ACR 006-17-Estate of Trevarthen