C V ACCIDENT COMPENSATION CORPORATION HC AK CIV 2010-404-6195

C V ACCIDENT COMPENSATION CORPORATION HC AK CIV 2010-404-6195 24 March 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2010-404-6195BETWEEN CAppellantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 2 March 2011Counsel: PG Schmidt and HJ Peart for appellantBA Corkill QC for respondentJudgment: 24 March 2011 at 10:00 AMJUDGMENT OF FAIRE JSolicitors: Philip Schmidt, PO Box 2569, Auckland 1140Accident Compensation Corporation, PO Box 242, Wellington 6140The appeal[1] This is an appeal pursuant to s 162 of the Accident Compensation Act 2001 (referred to in this judgment as ―the Act) from the decision of Judge Beattie delivered on 27 August 2009.1[2] Judge Beattie determined a question of law and ruled that the appellant was not entitled to cover under the Act for the continuation of her pregnancy beyond 20 weeks for the remainder of her pregnancy. It had been contended by the appellant that her pregnancy was a treatment injury in terms of s 32 of the Act.The facts[3] The background facts are not in dispute and are accurately summarised in Judge Beattie's decision as follows:2In or about September 2006, the respondent was diagnosed as being pregnant, that pregnancy being confirmed by tests carried out by her GP on 9 September 2006.The respondent engaged the services of a midwife to oversee her pregnancy.An ultrasound scan at 12 weeks was indicated as being normal.On 4 January 2007, the respondent underwent a 20-week ultrasound scan with Horizon Radiology Limited of Henderson. That ultrasound scan was carried out under the oversight and direction of Paul Kendrick, Sonographer, and Dr Richard Gee, Radiologist.In a written report dated 4 January 2007, Horizon Radiology under the signatures of Messrs Kendrick and Gee, advised as follows:"No anatomical abnormality detected.Size is consistent with dates. EDD above is confirmed.She has seen the baby and has a recording of the scan with her."The EDD was stated as being 24 May 2007.Baby [H] was born on 21 May 2007.1 Accident Compensation Corporation v [C] DC Auckland 145/2009, 27 August 2009.2 At [4].At birth [H] was found to have spina bifida, there being herniation of the spinal cord and membranes. She underwent remedial surgery on 22 May 2007.In a letter dated 23 May 2007, Dr Bruce Allen, the Chief Radiologist at Horizon Scanning issued a written apology to Ms [C] for their failure to diagnose the spina bifida from that 20-week scan.Subsequent independent specialist opinion would indicate that the signs were there to be seen in that scan but were simply overlooked.On 14 September 2007, the respondent made application to the Corporation for cover for a treatment injury said to be her continued pregnancy and of the fact that the incorrect advice from that 20-week scan deprived her of the opportunity of not continuing with that pregnancy.The Corporation issued its decision declining cover on 21 November 2007, it contending that the respondent's claim did not meet the criteria for a treatment injury.On 18 December 2007, the Corporation received an application for review of the decision declining cover, such application being made through the office of Mr Schmidt, Barrister and Solicitor.By decision dated 29 May 2008, the Corporation acknowledged that it had not made a primary decision on cover within the statutory time- frame of two months provided for in Section 57 of the Act, and that therefore it acknowledged that Ms [C] had a deemed decision of cover.By further decision, also dated 29 May 2008, the Corporation advised that it had revised the deemed cover decision issued on that date and that a fresh decision had been made to revise that decision by again declining to grant cover for her claim for a treatment injury.The respondent thereupon filed her applications for review in respect of those two decisions.At the review hearing, which took place on two dates, namely 7 July 2008 and concluding on 15 August 2008, the Reviewer had three applications for review to consider. Firstly, the original decision of 21 November 2007 to decline cover, secondly the deeming decision granting cover, and then the decision revising that decision and again declining cover, both dated 29 May 2008.In her decision dated 26 August 2008, the Reviewer declined jurisdiction to consider the first two review applications on the grounds that events had overtaken them, but that in respect of the Corporation's decision of 29 May 2008, to again decline cover for a treatment injury, the Reviewer elected to follow the High Court decision of Justice Mallon in the appeal of ACC v D, and held that Ms [C]'s pregnancy was a personal injury under the 2001 Act, and as such Ms [C] was entitled to cover for that continued pregnancy as a personal injury. The Corporation's decision of 29 May 2008 was therefore quashed andsubstituted by the review decision granting cover to Ms [C] for a treatment injury.[4] To that summary I add that:(a) The decision of Mallon J in the appeal Accident Compensation Corporation v D was delivered on 16 May 2007;3 and(b) On 22 December 2008, the Court of Appeal reversed that decision andconcluded that pregnancy was not a ―physical injury, and nottherefore a ―personal injury, under the Act.4The application for joinder of parties[5] In a second decision of Judge Beattie delivered on 27 August 2009 he declined an application by Messrs Kendrick and Gee of Horizon Radiology Ltd to be joined as parties to the appeal.5 No appeal from that decision has been filed. Understandably, therefore, they take no part in this appeal.The appellate jurisdiction[6] Section 162(1) and (2) of the Act provide:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.(2) The leave of the District Court must be sought within 21 days afterthe District Court's decision.[7] Section 162(5) incorporates the High Court Rules and ss 74 to 78 of the District Courts Act 1947 so that the appeal is dealt with as if it were an appeal under s 72 of the District Courts Act 1947. Section 76 empowers the court to make any decision or decisions which it thinks should have been made. A rehearing in the3 Accident Compensation Corporation v D [2007] NZAR 679 (HC).4 Accident Compensation Corporation v D [2008] NZCA 576.5 Accident Compensation Corporation v [C] DC Auckland 145A/2009 27 August 2009.District Court may be directed. I mention this possibility because of the way counsel for the appellant presented the case.[8] Judge Barber granted the appellant leave to appeal on the two issues addressed below.6 The respondent accepts that the issues are questions of law.The two issues[9] The two issues raised by the appeal and, in fact, specifically dealt with by Judge Beattie, are as follows:(a) Was the appellant entitled to cover for the continuation of her pregnancy past 20 weeks for the remainder of her pregnancy? It wascontended on the appellant's behalf that the continuation of herpregnancy was a treatment injury within the meaning of the Act.(b) Was the appellant entitled to the benefit of a deemed decision granting her cover by operation of s 58 of the Act with the result that the respondent had no statutory authority to revise that deemed decision as it did by its decision dated 29 May 2008?[10] In presenting his oral submissions counsel for the appellant departed from the synopsis which had been filed and served. He restated the first issue in the following terms:The appellant has suffered personal injury in the form of a developing lesion within herself which, had it been identified, could have been treated.Accordingly, he said it was not truly a claim for cover for the continuation of her pregnancy past 20 weeks.[11] Counsel for the appellant's restatement of the first issue departs from thegrounds identified in the application for leave to appeal. The grounds set out in that document follow the form in [9] of this judgment.6 [C] v Accident Compensation Corporation [2010] NZACC Wellington 145.[12] Both counsel were content that I proceed to hear the appeal based on both the first issue and the restated first issue.A possible to challenge to ACC v D[13] Counsel for the respondent properly drew my attention to a possible challenge to the decision of the Court of Appeal in ACC v D. He advised that there is currently an extant appeal before the Court of Appeal in which the Court will be asked to directly determine whether to follow its decision or not. As a result of this advice various options were canvassed with counsel.[14] Counsel for the appellant's position is that the determination of this appeal will largely depend on whether I find that the Court of Appeal's decision in ACC v Dis binding on me. He submitted that the present case is distinguishable in material respects and, for that reason, the decision is not binding. On that basis, he invited me to hear the appeal now. He acknowledged that if ACC v D is overturned, theappellant's case is significantly improved.[15] Counsel for the respondent was happy to have the appeal heard now. Hisposition, however, is contrary to that of counsel for the appellant's in that he submitsthat I am bound by the Court of Appeal decision in ACC v D and that that is decisive of the first issue raised in this case including the restated first issue.[16] Accordingly the appeal hearing proceeded on the basis that I shall apply the law as currently stated and binding on me.The first issue[17] I deal first with the first issue as originally stated.[18] The starting point is the Court of Appeal's decision in ACC v D. The facts of that case are recorded shortly in the majority decision as follows:[1] In October 2002, the first respondent, D, underwent a tubal ligation operation. The operation was performed by Dr Ballal, the secondrespondent. The operation failed and D became pregnant in 2003.She gave birth to a child in March 2004. The child's medicalconditions are such that ongoing medical assistance is needed.[2] D sought cover for herself under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (―the 2001 Act). In order to obtain cover, D had to have suffered a ―personal injury asdefined in the 2001 Act. In her claim the injury was described as her pregnancy.[19] The Corporation declined cover for D. The officers considered that thedefinition of personal injury was not satisfied. The Corporation's decision wasupheld on review on the basis that pregnancy is not personal injury but rather a natural physiological function. On appeal to the District Court the review decision was reversed. The Corporation obtained leave to appeal and appealed from the decision of the District Court. The appeal was heard as Accident Compensation Corporation v D.7 The appeal was dismissed.[20] A case was stated to the Court of Appeal in the following terms:8Was [the High Court] wrong in law in concluding that pregnancy is a―physical injury and therefore a ―personal injury under [the Act].[21] The majority held that the answer to the case stated was ―yes. The courtconcluded that:9 unwanted pregnancy is not a ―personal injury under the 2001 Actbecause it is not a physical injury.[22] That result reversed the High Court and District Court decisions. That position is important when I consider the second issue raised by this appeal.[23] The contrasting position is contained in William Young P's dissentingjudgment. He said:10 I see the expressions ―personal injury, ―physical injuries and ―gradual process as sufficiently broad to encompass unwanted pregnancy which results from medical misadventure.7 Accident Compensation Corporation v D [2007] NZAR 679 (HC).8 Accident Compensation Corporation v D [2008] NZCA 576 at [3].9 At [54]10 At [78].[24] Counsel for the respondent submitted that the present case, in reality, is nodifferent. He submitted that the essence of the case advanced on the appellant'sbehalf is one of an unwanted pregnancy following the failure of the registered health professionals to correctly read the 20-week scan and communicate a correct diagnosis to the appellant. He submitted that what the appellant was seeking was nothing more than an endorsement of the approach advanced by William Young P in his dissenting judgment.[25] Counsel for the appellant, no doubt recognising the force of counsel for therespondent's submission, changed the focus of the inquiry under the first issue in the manner that I recorded in [10] of this judgment.[26] He submitted:(a) The appellant when attending for her 20-week scan was receiving treatment from or at the direction of a registered health professional.(b) The purpose of the 20-week scan is to check abnormalities in the fetus.(c) Having regard to the combined operation of s 33 of the Contraception, Sterilisation, and Abortion Act 1977 and s 187A of the Crimes Act1961 in the case of a pregnancy of not more than 20 weeks' gestationan abortion is not unlawful if the person performing the abortion believes that there is a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped. Inthe case of a pregnancy of more than 20 weeks' gestation the abortion may only be performed if the person undertaking the procedure believes that miscarriage is necessary to save the life of the woman or girl or to prevent serious permanent injury to her physical or mental health.(d) The 20-week scan disclosed an Arnold Chiari malformation. That was overlooked by the stenographer and the radiologist. In short, adiagnosis of spina bifida was missed. Arnold Chiari is the hindbrain malformation associated with spina bifida whereby the cerebellum is displaced downward into the spinal canal.(e) The failure to diagnose spina bifida was not a necessary part or ordinary consequence of the treatment. The failure resulted in the continued development of a child with spina bifida. The failure to diagnosis spina bifida prevented the parents from being offered a treatment option, being an abortion. The continued development ofthe child's condition is, in itself, harmful and injurious to the appellantmother.(f) The failure to advise of the possibility of an abortion meant that a treatment option was lost which had the effect of allowing the lesion on the fetus to grow within the mother. That continuing development would have been avoided had the proper advice been given from a registered health professional and a termination undertaken.[27] What is apparent is that the pregnancy was not caused by the treatment. The deformities in the growing fetus were not caused by the treatment. In issue, rather, is whether treatment may be said to have caused the condition to continue or worsen when it should have been alleviated, in which case personal injury will have been suffered by at least the fetus.[28] I do note that the evidence before me suggests the only option available to the appellant other than the continuation of her pregnancy was an abortion. This is the essential effect of further comments of Dr TB Stanley, a paediatrician, of 8 May 2008. He observed that intra-uterine procedures to treat spina bifida before birth remain experimental and are only practiced in one or two centres in the United States of America. It would not, therefore, have been open to the appellant to undergo such procedures in New Zealand. Dr Stanley noted the results of such procedures remainunclear, and outlined the attendant risks. He concluded that ―we do not recommendreferral for this procedure until the benefits have been clearly shown. In the reviewdecision of 26 August 2008, the reviewer noted the appellant was no longer pursuingher earlier claim that the failure to diagnose spina bifida resulted in a missed opportunity for treatment by way of intra-uterine procedures.[29] Had spina bifida been diagnosed, the appellant therefore had two options. The first was to continue with the pregnancy. The second, assuming her situation met one of the two bases I referred to in [27](c), was to have an abortion. I return to the import of this point.Analysis[30] The issue is one of statutory interpretation. I therefore consider the relevant statutory provisions.[31] Cover is available for personal injury:(a) That is treatment injury suffered by the person (s 20(2)(b)); and(b) That is caused by a gradual process, disease, or infection that is treatment injury suffered by the person (s 20(2)(f)).[32] Personal injury is defined in s 26 of the Act. The appellant relies on s 26(1)(b). Section 26(1)(b) provides:26 Personal injury(1) Personal injury means–(b) physical injuries suffered by a person, including, for example, a strain or a sprain[33] There are various exclusions. Section 26(2) provides:(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).[34] Sections 26(2) and 20(2)(f) make it clear that the exclusion from the definition of personal injury of injury caused by a gradual process, disease, or infection does not apply to personal injury of that type where there is treatment injury.11 Thus as the authors of Medical Law in New Zealand observe:12[T]he development, continuation or progression of a disease or infection canamount to ―physical injury where it is caused by treatment and qualifies asTreatment Injury. The failure to diagnose or treat a physical condition so that it continues or worsens when it should have been alleviated is ―physical injury.[35] Treatment injury is defined in s 32. Section 32 provides:32 Treatment injury(1) Treatment injury means personal injury that is—(a) suffered by a person—(ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; (b) caused by treatment; and(c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including—(i) the person's underlying health condition at the time of the treatment; and(ii) the clinical knowledge at the time of the treatment.[36] There are various exclusions (for example personal injury that is wholly or substantially caused by a person's underlying health condition). It is common ground none apply to the present case.11 ACC v D [2008] NZCA 576 at [8]-[9].12 PDG Skegg and Ron Paterson (eds) Medical Law in New Zealand (Brookers, Wellington, 2006)at [24.3]. The first sentence was cited with approval by the Court of Appeal in ACC v D, at [8].[37] Treatment is non-exhaustively defined in s 33. The appellant relies on s 33(1)(d). Section 33(1)(d) provides:33 Treatment(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—(d) a failure to provide treatment, or to provide treatment in a timely manner:The personal injury in respect of which cover is sought[38] The first issue in this case is whether there was a personal injury in respect of which cover is available under the Act.[39] The appellant originally advanced her case on the basis the continuation of her pregnancy was a physical injury caused by treatment. That is confirmed in a letter of 20 July 2007 from her solicitor to her doctor when instructions were given to lodge a claim. The claim has been analysed throughout on this basis.[40] As I have already recorded, a majority of the Court of Appeal in ACC v Dheld that pregnancy, even if unwanted, is not a physical injury suffered by the mother in terms of the Act.[41] On this authority, the continuation of the pregnancy of the appellant was not, without more, a physical injury suffered by her. There was no physical injury in respect of which cover was available under the Act. This is the basis on which JudgeBeattie analysed the appellant's claim. I can find no basis for criticism of the Judge's analysis of the issue as it was advanced before him. His conclusion wasbound by the decision of the Court of Appeal in ACC v D. That decision of course binds this Court also.[42] The appellant now advances her case on an entirely different basis. It is now her position that the continuation or worsening of the lesion when it should havebeen alleviated was a personal injury (in that it was a physical injury in the sense examined in [34]) that is a treatment injury in that it was caused by treatment (namely a failure to provide treatment).[43] The altered position raises a number of issues that have not been previously addressed. At the hearing I expressed my concern to counsel as to whether it was proper to allow the claim to be advanced on this new basis. Both counsel assured me that if I concluded there was an arguable foundation for the restated claim the proper course was to refer the matter back to the District Court so that the appropriate evidence could be advanced and the position reconsidered.Was there personal injury in respect of which cover was available?[44] I accept there is an arguable foundation for the position described in [42]. Factual matters that would require referral back to the District Court would perhaps include:(a) The evidential basis for the proposition that the Arnold Chiari malformation continued or worsened past the 20-week scan.(b) The evidential basis for the proposition that had the condition been correctly diagnosed treatment could have alleviated it.(c) If the only treatment contemplated by (b) is abortion, the evidential basis for the availability of that treatment against the statutory criteria to be met before it could be lawfully performed.(d) The evidential basis for the proposition that had abortion been available the appellant would have availed herself of it (without which the treatment could presumably not be said to have caused the injury on which the appellant relies).[45] In respect of the second issue the evidence, as I have found, suggests the only treatment option open to the appellant was abortion. Abortion would, in a crude sense, clearly have alleviated the condition. I do not go so far as to say or suggestthat if available in the sense it could be lawfully performed it would constitute treatment in terms of s 33(1)(d). I note the evidence before me suggests abortion could have been a quite disproportionate response to the likely prognosis. I suspect this question reduces to a clinical determination on which I am unable to speculate in the present appeal.[46] In summary I indicate that the appellant's proposition that the continuation orworsening of the lesion was a personal injury that is a treatment injury in that it was caused by treatment is an arguable one, albeit tenuous at least on the evidence presently before the Court.Was the injury suffered by the appellant?[47] The second issue in this case is whether any personal injury was suffered by the appellant. Section 20 requires the personal injury in respect of which cover issought to be suffered ―by the person.[48] In light of my finding above this becomes the principal issue in the determination of this appeal. For present purposes the personal injury described in[42] is assumed.[49] The appellant seeks cover on the basis the personal injury was suffered by her. Her counsel relies on Harrild v Director of Proceedings.13 In that case a majority of the Court of Appeal regarded the death of an unborn child in utero as a physical injury suffered by the mother, even though she suffered no additional, separate physical injuries herself other than the loss of her child.[50] Counsel for the respondent submits to the contrary. Any injury, he submits, was suffered not by the appellant but rather the child, and any claim is her claim. There was no personal injury suffered by the mother in respect of which cover is available to her.13 Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA).[51] The point is an important one. Regrettably, because of the manner in which the case progressed, it was not one on which I had the benefit of comprehensive submissions. It was not addressed in the written submissions of counsel for the appellant. It was addressed only summarily in supplementary submissions of counsel for the respondent. This caused me some concern, which I expressed to counsel. Both counsel advised me they wished me to proceed. I feel constrained to do so.[52] I begin my analysis with the following propositions extracted from the authorities:The legal status of the fetus(a) A fetus has no status in law to claim accident compensation unless and until born alive. This is because, as a matter of interpretation, afetus is not a ―person under the Act.14 This accords with the ―born alive rule well established at common law. The ―born alive rule isthat a fetus has no legal rights prior to birth and accordingly unless born.15 It has been emphasised the rule is founded on convenience rather than developed medical or moral principle.16An unborn child who dies in utero(b) It follows from (a) that an unborn child who dies in utero is not a person who suffers personal injury and therefore has cover under the accident compensation legislation. The death of an unborn child in utero is, however, a physical injury suffered by the mother, even though she suffers no additional, separate physical injuries herself other than the loss of her child.1714 Harrild v Director of Proceedings at [50] and [119].15 Harrild v Director of Proceedings at [117] and [126]. See also Sam v ACC [2009] 1 NZLR 132(HC) at [35].16 Harrild v Director of Proceedings at [117] and [126]. See also Sam v ACC at [35].17 Harrild v Director of Proceedings.The child born alive(c) Where a child is born alive after suffering antenatal injuries the child is considered a person entitled to claim in its own right for compensation under the accident compensation legislation.18 In thissense the ―born alive rule may be seen as having retrospectiveapplication.[53] This brings me to the principal issue in the present case. It may be stated in the following terms. Does it follow that because a mother can claim, in respect of the death of her unborn child in utero, for personal injury suffered by her, that a mother can claim, in respect of personal injury as described in [42] to an unborn child who is later born alive and therefore entitled to claim in its own right, for personal injury suffered by her, though she suffers no additional, separate physical injuries herself?[54] Support for that proposition can be found in the judgment of McGrath J inHarrild v Director of Proceedings. I turn presently to consider his and the other judgments in more depth. Briefly, McGrath J held that in the accident compensationcontext, ―a fetus is part of the person of the mother, so that injury to a fetus is personal injury to that person.19Some competing considerations[55] I first consider further support for the proposition in [53]. The Court of Appeal has long seen a generous and unniggardly interpretation of the accident compensation legislation as in keeping with its policy of comprehensive cover for all those suffering personal injury in New Zealand.20 McGrath J in Harrild v Director of Proceedings regarded a broad meaning of ―person (extending to human tissuethat is connected to and inside the body of a woman, including the unborn child) as18 Harrild v Director of Proceedings at [50] and [134]; Sam v ACC at [42].19 At [134].20 Reaffirmed in Harrild v Director of Proceedings at [19] per Elias CJ, [39] per Keith J and [80]per McGrath J.according with the ―policy of legislation intended to compensate for personal injuryon a broad basis, whether or not attributable to the fault of another.21[56] I also consider the following observation from the authors of Medical Law in New Zealand (and, presently, the qualification that follows):22It may be considered preferable that the same result pertains whether the foetus dies in utero or shortly after birth; that cover and the mother's abilityto claim damages does not depend on the fortuity of whether or not the baby survives birth.[57] I now consider considerations counter to the proposition in [53]. On this view once a child is born any injury is seen as an injury to the child alone, with thechild's claim being substituted for the mother's.23 The child ―takes its physical injuries with it when born, so to speak.24[58] I first note that it flows from [52](c) above that any entitlement of the mother to cover in respect of injuries suffered by an unborn child later born alive would be dual. That is, both the child and the mother could be compensated, in respect of what might arguably be said to be the same injury.25 Though McGrath J anticipated this (and adverted to apportionment sometimes being necessary)26 the apportionment exercise would seem in these circumstances – no additional and separate injury to the mother – somewhat artificial. If the child born alive can claim in its own right for antenatal injuries suffered by it, why should cover extend to the mother if she sustained no additional and separate injury? This is an arguably coherent applicationof the ―born alive rule and its retrospective application.[59] The death of an unborn child in utero also now presents something of an anomaly. The authors of Medical Law in New Zealand continue:27On the other hand, the father could still claim, having suffered no physical injury. It might be thought anomalous that the father, but not the mother, could be awarded damages for injury to feelings. Although that is the case21 At [133].22 At [25.10].23 See Harrild v Director of Proceedings at [75].24 Medical Law in New Zealand at [25.10].25 See Harrild v Director of Proceedings at [75].26 At [134]. See also [75] per Blanchard and Glazebrook JJ.27 At [25.10].when the baby dies in utero, it might be considered best to confine the extent of the anomaly.The authorities[60] The issue was left open but considered in Harrild v Director of Proceedings. For convenience I address the judgments of the members of the Court of Appeal in the following order rather than that in which they appear.[61] McGrath J emphasised at the outset of his judgment that the Court of Appealhad long seen a generous and unniggardly interpretation of the term ―personal injury as in keeping with the policy of universal coverage under the accidentcompensation legislation.28[62] He identified two meanings to be given to whether any ―person had sufferedpersonal injury under the Act:(a) A restrictive (and, he found, artificial) meaning which isolates from a―person entitled to claim compensation an unborn child that isconnected to and inside the mother at the time the child suffers the medical misadventure causing injury.29(b) A broader meaning extending to human tissue that is connected to and inside of the body of a woman (including an unborn child, despite the fact that the unborn child is not permanently connected to or inside of the mother).30[63] McGrath J regarded the generous and unniggardly interpretive approach as favouring the second. He held accordingly that in the statutory context ―a fetus ispart of the person of the mother, so that injury to a fetus is personal injury to thatperson.3128 At [80].29 At [131].30 At [133].31 At [133].[64] In sharp contradistinction is the judgment of Blanchard and Glazebrook JJ in dissent, delivered by Glazebrook J. They regarded the mother and her unborn child as separate organisms. To treat them as a single entity (that is, to treat the death of the unborn child as direct physical injury to the mother) was to ignore biologicalreality, and inconsistent with modern medical practice and with most women'sexperience of pregnancy.32 They held, accordingly, the death of the unborn child was the death of a separate organism and could not be seen as direct physical injury to the mother.33[65] Elias CJ expressly disavowed treating the unborn child as the same as themother, not being attracted by the ―stark choice of treating the unborn child eitheras the same as or as distinct.34 She restricted herself to the finding that where severance of the physical link between mother and unborn child occurs through the death of the child as a result of medical error physical injury within the meaning of the legislation is suffered by each.35[66] Keith J, while still relying on the physical link between the unborn child and the mother, acknowledged the child is not the ―same as the mother and similarly restricted his conclusion to still birth.36[67] This Court in Director of Proceedings v O'Neil considered the death of an infant child as a result of the negligence of the midwife prior to his birth.37 The Court considered the child was entitled to accident compensation.38 It did not, however, consider the mother had suffered injury and so she was able to claim separately under the Heath and Disability Commissioner Act 1994. The case was decided prior to the decision of the Court of Appeal in Harrild v Director of Proceedings.32 At [66].33 At [69].34 At [21].35 Ibid.36 At [42].37 Director of Proceedings v O'Neil [2001] NZAR 59 (HC).38 At [20].[68] I also mention the decision of this Court in Sivasubramaniam v Yarrall.39The Court had to determine whether the death of the appellant's unborn child in amotor vehicle accident amounted to a physical injury that she suffered in the accident so as to preclude her claiming in common law against the other driver. The Court regarded itself as bound by Harrild v Director of Proceedings. Heath J observed, obiter:[68] In my view, an injury to, or death of, an unborn child should not be regarded as a personal injury suffered by the mother for the purpose of the accident compensation scheme. By and large, I agree with the dissenting judgment of Blanchard and Glazebrook JJ in Harrild, for the reasons givenby Glazebrook J. I would have regarded the minority's conclusion as reinforced by ss 2 and 12 of the Births, Deaths, and Marriages Registration Act 1995, requiring registration of stillborn babies. I note also that similar reasons led both Wild and Ronald Young JJ to hold in favour of the Director of Proceedings in the High Court ([2002] NZAR 513).[69] Notwithstanding my preferred view, I am unable to find any principled basis for holding that the majority in Harrild did not intend their reasoning to apply in a case such as this. In those circumstances, I must apply the majority decision.[69] The Court held the death of the appellant's unborn child constituted a physical injury to her and so her common law claim was barred.40My view[70] I find that the appellant cannot claim in respect of personal injury suffered by her unborn child, where that child is born alive and is entitled to claim in her own right, for personal injury, and where the appellant suffered no additional, separate physical injuries herself. I answer the question posed in [53] in the negative.[71] The decision of the Court of Appeal in Harrild v Director of Proceedings was confined to the death of an unborn child in utero and is therefore not binding on me. In respect of the present facts I agree with the reasoning of Blanchard and Glazebrook JJ in dissent. To treat physical injury to the fetus as direct physical injury to the mother is to view a mother and fetus as a single entity. It ignores biological reality. The fetus is a separate organism, genetically distinct from the39 Sivasubramaniam v Yarrall [2005] 3 NZLR 268 (HC).40 At [70].mother and designed after a finite period to have separate existence.41 On attaining separate existence the born alive child alone is entitled to claim in respect of antenatal injuries suffered by it. I find the logic of the decision of this Court inDirector of Proceedings v O'Neil in this respect more compelling.[72] I accept that the reasoning of McGrath J would dictate a contrary finding but I note neither Elias CJ nor Keith J went so far. Elias CJ, in particular, carefully restricted her finding to the death of an unborn child in utero.[73] I do not regard the generous and unniggardly interpretation properly accorded the accident compensation legislation as inconsistent with my finding. In my view, for the reasons given by Blanchard and Glazebrook JJ in dissent, interpreting―person so as to include the appellant's unborn child is strained.42 But in any case my finding does not deny compensation for the personal injury, it simply requires cover in respect of the same to be claimed by the person who in fact suffered it. To deny cover to the mother does not undermine the policy of the legislation because the child can in an appropriate case claim in substitution.[74] I conclude by observing that while my finding has the effect of confining the scope of Harrild v Director of Proceedings, and is contrary to the judgment of McGrath J in that case, I regard it as otherwise consistent with the reasoning in that decision. I refer in particular to the following of the judgment of Elias CJ:43Where severance of the physical link between mother and unborn child occurs through the death of the child as a result of medical error I consider that physical injury within the meaning of the legislation is suffered by each.[75] Elias CJ found the mother suffered a direct physical injury not identical to that suffered by the fetus.44 The death of the unborn child in utero as a result of medical error might arguably be said to be in this respect sui generis. I do not think that either as a matter of interpretation or in an effort to maintain a consistency of approach it can be said that any direct physical injury was suffered by the appellant in the present case. Certainly none is suffered of a type meaningfully distinguishable41 See Harrild v Director of Proceedings at [66].42 At [70].43 At [21].44 At [22].from that suffered by her then unborn child, in respect of which baby H can now claim.Baby H's claim[76] I am advised by counsel that baby H has, in fact, had a claim placed on her behalf. The claim has been accepted in part. That which has not yet been accepted is subject to an appeal to the District Court.[77] I would observe, obiter, that if baby H was to claim, as her mother has done, on the basis that the misdiagnosis resulted in the continuation or worsening of the lesion where it should have been alleviated by the abortion of the fetus, such a claim would amount to one of ―wrongful life. I refer in passing to the decision of theCourt of Appeal of England and Wales in McKay v Essex Area Health Authority.45The plaintiff in that case, an infant child born disabled suing by her uncle and next friend, claimed against a health authority and doctor. Tests for rubella had resulted, by the alleged negligence of the defendants, in false negatives. The rubella, as it seems with the congenital disorder in this case, was not treatable other than by abortion. It was the mother's position she would have aborted the fetus had she notbeen ―misled as to the advisability of that course. The Court considered that to entertain the child's claim would be to contrary to public policy as a violation of thesanctity of human life,46 a sentiment with which I entirely agree.The second issue[78] The question here is whether the deemed decision of 29 May 2008 that the appellant had cover can stand irrespective of the outcome on the first issue.[79] This issue requires a consideration of ss 58(1) and 65(1) of the Act. Section 58(1) provides:45 McKay v Essex Area Health Authority [1982] 1 QB 1166 (CA).46 At 1180 per Stephenson CJ and 1188 per Ackner LJ.58 Effect of failure to meet time limits(1) When the Corporation fails to comply with a time limit under section 56 or section 57, whichever applies, the claimant is to be regarded as having a decision by the Corporation that he or she has cover for the personal injury in respect of which the claim was made.[80] Section 65(1) provides:65 Corporation may revise decisions(1) If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error.[81] Section 65(1) may be invoked if the Corporation considers it made a decision in error.[82] The papers reveal that the Corporation has consistently advanced an interpretation on the issue of whether pregnancy is a personal injury consistent with that upheld by the Court of Appeal. At the time it issued its decision to revise the deemed decision it held that view. It follows that there is ample justification for concluding that it considered the deemed decision is a decision made in error.[83] Any other interpretation would fail to give support for the position adopted inACC v Bartels where a Full Bench of the High Court stated that:47[T]he history of this section illustrates the intention of the legislature not to restrict an assessment of whether a decision was made in error to the material available at the time the decision was made.In addition, and very importantly, that view is consistent with the dicta of John Hansen J in Cooper v ACC.48 He makes it plain that the provision should not be invoked so as to provide a windfall or to create a situation where the Corporation was acting outside the authority granted to it by the Act.[84] I therefore conclude that Judge Beattie's conclusion on the second issue wascorrect. Further, that seems to me to be the only outcome that could follow in this case when the conclusion on the first issue is reached. Otherwise, one would be left47 Accident Compensation Corporation v Bartels [2006] NZAR 680 (HC) at [30].48 Cooper v Accident Compensation Corporation HC Dunedin AP9/02, 13 September 2002 at [31]and [32].with the position where the appellant, by the operation of the deeming provision would, indeed, have received a windfall.A possible third issue[85] In his written submissions, counsel for the appellant referred to a possible third issue that was not before the District Court. He describes that issue as: whether a lost opportunity for a planned caesarean section procedure, the consequential requirement for an emergency caesarean, and the chance of an improved outcome for [H], qualifies as a treatment injury under the Act.[86] This submission was not developed. In view of my finding above this would in any case be a claim on behalf of baby H.Conclusion[87] My answer to the first question, both as originally stated and as restated, as to whether the appellant has cover in respect of personal injury suffered by her, is no.[88] In relation to the second issue, I hold that Judge Beattie's conclusion on thatissue was correct.[89] I make no specific order in relation to the third possible issue raised by counsel for the appellant.Decision[90] The appeal is dismissed.Costs[91] Counsel requested that I reserve costs so that they had the opportunity of discussing and possibly agreeing on the position. Accordingly costs are reserved. In the event of disagreement, memoranda shall be filed and served at seven-dayintervals in support, opposition and reply. On receipt of the reply memorandum the file shall be referred to me to consider the question of costs._____________________JA Faire J