Winikerei v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 158 /99 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN KAHURANGI WINIKEREI DCA 89/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 25th day of February 1999 APPEARANCES: Mr R H K Jerram counsel for appellant Mr J D Palmer counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the condition known as Foetal Alcohol Syndrome (FAS) can be said to be personal injury by accident as those expressions are defined in sections 3 and 8 of the Act. 2 When this appeal came on for hearing counsel for the respondent did in fact contend that there was a second issue for determination, namely, whether a foetus could be regarded as being a person for the purposes of the ARCIC Act 1992. At the completion of oral submissions this appeal had been adjourned to enable both counsel to make further submissions on this point. It is now the respondent's contention that it no longer wishes to rely on the contention that a foetus is not a person within the meaning of section 8 of the Act. Accordingly I do not propose to consider that aspect further as it has now been conceded and the appeal now revolves entirely around the issue which I have identified above. It also needs to be mentioned at this stage that the respondent has not made any primary decision as to whether in fact this appellant has suffered FAS and the factual aspects surrounding the alleged contracting of that syndrome have yet to be investigated and a decision made. The respondent's primary decision at this point is simply that a claimant who contends that she suffers from FAS is not entitled to cover as FAS cannot be said to be personal injury by accident. The background to this claim is that the appellant, a female child, was born on 14 July 1992. At the time of her birth the child's mother was aged 15. The child has been in the care of her grandmother more or less since birth and in 1995 the appellant's grandmother lodged a claim with the respondent for cover for personal injuries said to have been suffered prior to the child's birth and known as the foetal alcohol syndrome. The claim for cover has not progressed past the consideration by the respondent as to whether foetal alcohol syndrome constitutes personal injury by accident and in its letter of 12 July 1995 it advised the appellant's grandmother that the child's claim for cover had been declined due to the fact that the claim does not meet the definition of personal injury by accident. At the review hearing the appellant was represented by counsel and Mrs Winikerei gave evidence regarding her daughter's behavioural problems and of the fact that from about the age of 12 she developed a drug and alcohol problem and that during the time she was pregnant with the appellant she was regularly drinking heavily to a state of severe intoxication and also taking drugs. She stated that these occasions were frequent and during this period she was also living rough. Although it is not part of the factual matrix for decision in this appeal there is evidence from specialists that the appellant is now suffering from various of the effects that are known to be symptoms of Foetal Alcohol Syndrome. It is also evident that the appellant's condition is one which has required and will continue to require ongoing treatment, hence no doubt the seeking of cover for her under the Act. The Review Officer took the same course that this Court has indicated it would take on this appeal, namely, that he would consider only the question of whether the condition of Foetal Alcohol Syndrome meets the requirements of being personal injury by accident under the Act. In his decision the Review Officer said that if it should be accepted that such a condition would be entitled to cover under the Act then that would be a matter that would be required to be addressed by the Corporation and that a new decision would carry further review and appeal rights. However, the decision of the Review Officer does not really assist this Court as it was a primary finding of the Review Officer that a foetus cannot be regarded as having a separate identity and therefore is not a person who could suffer personal injury by accident and that it could not be said that the child suffered that injury at the moment of birth. The Review Officer did however consider the provisions of section 8 (a) and (b) and he found that there could not be said to be a series of events or any application of a force external to the human foetus as would be required under 8(a). Furthermore he found that under 8(b) he considered that the absorption of alcohol by the foetus could not be said to be inhalation or ingestion. He considered that the 4 words inhalation or oral ingestion precluded the application of 8(b) in the present circumstances. The Review Officer found that neither subsections (c)(d) or (e) were applicable and therefore he found that the requirement of section 8 could not be satisfied in any event. For the purposes of appeal to this Court, evidence was adduced from two experts as to precisely what the nature and circumstances of FAS was and I propose to set out the particulars of that evidence. The evidence submitted on behalf of the appellant was that of Dr Rosemary Marks, Paediatrician who is a registered medical practitioner specialising in Developmental Paediatrics. She is presently employed at Starship Children's Hospital at Auckland and has published papers on the subject of FAS and Associated Alcohol Related Neuro-Developmental Disability. She stated as follows: "Foetal alcohol syndrome (FAS) is a specific syndrome characterised by the following features: Central nervous system involvement: Developmental delay Intellectual impairment Behaviour dysfunction or deficit Neurological abnormality Structural abnormalities of the brain Growth retardation" Prenatal and/or postnatal Weight and/or height < 10th percentile Characteristic facial features: Short palpebral fissures Elongated midface Long and flattened philtrum Thin upper lip Flattened maxilla FOETAL alcohol syndrome only occurs following prenatal exposure to alcohol. Foetal alcohol syndrome is classically seen in infants whose mothers have drunk alcohol to excess throughout pregnancy. The syndrome can also occur following a single episode of binge drinking. The foetus is most susceptible early in the first trimester or first third of pregnancy. Damage to the developing nervous system can occur throughout pregnancy. . .. --- -- I have been asked to address whether foetal alcohol syndrome/FAS/ARND can result from binge drinking. I personally have seen two individuals in which there was a clear history of binge drinking at a critical stage of pregnancy. In one individual this was a single episode taking place one evening. Both these individuals have classical foetal alcohol syndrome with severe functional difficulties and low/border-line intellectual ability. Other colleagues overseas and in New Zealand can relate similar cases. ... PHYSICIANS divide pregnancy into three stages or trimesters, each lasting approximately 13 weeks. In the first trimester rapid growth of the embryo follows conception and over this period the embryo develops from an undifferentiated cell mass in to a foetus. By the 13th week all the major organ systems have been formed. Alcohol exposure during this period of pregnancy is likely to result in disruption of formation of organ systems and hence causes the facial features, structural abnormalities of the brain and cardiac abnormalities which can be part of the syndrome. 6 In the second and third trimesters of development the term used is foetus rather than embryo and ongoing development of the organ systems takes place. In the third trimester the major feature is growth. The brain in particular is susceptible to the effects of alcohol throughout pregnancy. Thus a child exposed to heavy alcohol consumption in the last trimester of pregnancy may be born with microcephaly (or abnormally small head) and mental retardation but without the typical features of foetal alcohol syndrome. A recent British report describes a case where a woman nearly died from her alcohol abuse on two occasions in the third trimester of her -- - -- pregnancy. The foetus survived and was morphologically normal but microcephalic. When a pregnant woman drinks an alcoholic drink the alcohol is absorbed in to the blood stream. As the mother's blood circulates through the maternal side of the placenta, nutrients and other substances cross readily in to the foetal blood. Alcohol in particular crosses the placenta well. Studies of maternal and foetal blood alcohol concentrations following one drink of alcohol have shown that the foetal alcohol level rises. The peak achieved is lower than that in the mother's blood but the period for which the foetal blood alcohol remains elevated is longer. In the adult, alcohol (and many other potentially toxic substances) are metabolised or degraded by the liver. The enzyme responsible for destroying alcohol is called alcohol dehydrogenase; the by-product of this breakdown is a substance called acetaldehyde and this may also have direct toxic effects. The foetal liver is immature; this is essential for the protection of the foetus. If the foetal liver could process toxins at the same rate as an adult liver then any toxins could be degraded by the foetus and released in to the foetal urine which remains a constant source of further intoxication. Some alcohol will be excreted by the foetus in its urine into the amniotic fluid. As the foetus from early pregnancy swallows the amniotic fluid, some alcohol will be reabsorbed and this may be the reason for the more prolonged increase in blood alcohol seen in the foetus compared with his/her adult mother. . .. It is my view that foetal alcohol syndrome or neuro-developmental disability (ARND) (previously called foetal alcohol effect) complies with the definition under S.3 (a) of the Accident Rehabilitation and Compensation Act. Foetal alcohol syndrome or neuro-developmental disability effectively results from a series of events which result in the intravenous administration of a foreign and toxic substance to the foetus. The respondent has submitted an affidavit from Dr Joanne Dixon, Paediatrician currently employed by Capital Coast Health as Director Central Regional Genetic Service. Her specialist area is medical genetics including prenatal diagnosis. Dr Dixon agrees that Dr Marks has accurately described the nature and mechanism of FAS as it is currently understood to operate. She goes on to state, inter alia: "The difficulty with diagnosing Foetal Alcohol Syndrome is that not all foetuses who are exposed to alcohol abuse will develop the syndrome. In fact, I suspect that only 10% of exposed foetuses go on to develop the functional and intellectual difficulties that are associated with FAS. In my opinion, this suggests that FAS is caused not only by the presence of high levels of alcohol in the foetus's blood stream but possibly the prevalence of other toxins and/or a predisposition or susceptibility to FAS. In the Marks affidavit, reference is made to the concept that binge drinking can cause FAS. It is my understanding that this proposition is currently the subject of some research. There are real problems in proving that an individual exhibiting the classical FAS symptoms developed those symptoms as a result of a binge. In particular, it is impossible to establish the accuracy of information given by mothers as to the frequency and amount of alcohol consumed during pregnancy. I note that the other problems in establishing the effect of binge drinking have been described in the Marks affidavit at paragraph 8. -- -- -- In my opinion it is unlikely that an episode of binge drinking during the first trimester of pregnancy could cause FAS. Long term exposure to high levels of alcohol is far more likely to result in FAS. It is possible that binge exposure may contribute to foetal alcohol effects but I believe more evidence is needed. . .. ... Furthermore, it is my opinion that any damage to a foetus caused by the consumption of alcohol by the mother will occur when that alcohol is absorbed through the placenta. Any other toxins reabsorbed orally by the foetus will have little or no additional effect. It could be said that by the time the foetus reabsorbs what, if any, toxins are produced by its liver the damage has already been done. In addition to that evidence the respondent also produced a statement from Dr Kelvin Bremner, Assistant Corporate Medical Advisor. That memorandum states as follows: "RE: FOETAL ALCOHOL SYNDROME 9 Oxygen and nutrients are passed from the other to the foetus through the placenta by osmosis. Capillaries in the (foetal) placenta are very closely approximated to the material capillaries so passage of essential substances passes from one to the other. The reverse is true in that waste products arising from the foetal metabolism are transferred into the maternal circulation in the reverse direction, again by osmosis. Blood from the foetus passes through the umbilicus both ways via the umbilical arteries and veins. The placenta basically consists of millions of capillaries and little else. The capillaries eventually join together to form the larger vessels in the umbilical cord which passes to and from the foetus. At birth the placenta becomes redundant, the placental circulation ceases to function, and with the first inspiration, the lungs take over the function of aerating the foetus, the gut thereupon provides the nutrients, and the kidneys start removing waste. I attach a definition of the foetal alcohol syndrome taken from Dorland's dictionary which should be enough, I hope! The critical bit from my (?your) point of view is that it requires the mother to have been a chronic alcoholic and the foetus to have been bathed in alcohol for a long period. A single or even the very occasional binge would not be enough to result in the changes described." RELEVANT STATUTORY PROVISIONS 3. "Accident" means - ( a) A specific event or series of events that involves the application of a force or resistance external to the human body and that results in personal injury, but does not include any gradual process; and the fact 10 that a personal injury has occurred shall not of itself be construed as an indication or presumption that it was caused by any such event or series of events; or (6 ) The inhalation or oral ingestion of any solid, liquid, gas or foreign object where the inhalation or ingestion occurs on a specific occasion; but does not include inhalation or ingestion of a virus, bacterium, protozoa, or fungi, unless that inhalation or ingestion is the result of a criminal act of another person; or (c) Any exposure to the elements or extremes of temperature or environment within a defined period of time not exceeding I month that causes disability that lasts for a continuous period exceeding 1 month or death; or ( d) Any burn or exposure to radiation or rays of any kind on a specific occasion that is not a burn or exposure caused by exposure to the elements; or (e ) The absorption of any chemical through the skin within a defined period of time not exceeding I month - but excluded any of the occurrences specified above that is treatment by or at the direction of a registered health professional for treatment provided outside New Zealand by or at the direction of a person who has qualifications equivalent to those of a registered health professional in New Zealand]. 8 Cover for personal injury occurring in New Zealand - (1) This Act shall apply in respect of personal injury occurring in New Zealand on or after the Ist day of July 1992 in respect of which there is cover under this Act. 11 (2) Cover under this Act shall extend to personal injury which - (a) Is caused by an accident to the person concerned; or (b) Is caused by gradual process, disease, or infection arising out of and in the course of employment as defined in section 7 of this Act; or (c) Is medical misadventure as defined in section 5 of this Act; or (d) Is a consequence of treatment for personal injury [covered by this Act]. SUBMISSIONS Mr Jerram, counsel for the appellant, submits that the mechanism by which alcohol can damage the foetus, namely, alcohol ingested by the mother crossing the placenta into the baby's foetal blood constitutes a force external within the meaning of section 3(a). Counsel submits various dictionary meanings of the word force being as follows: a) An influence operating on the body so as to produce an alteration or tendency to alteration in its state of rest or of uniform motion in a straight line. b) An attribute of physical action or movement. c) Bringing about or effecting something. To lay stress upon something. Power exerted upon an object. d) A power to influence, effect, affect, or control. e) That which tends to produce a change in a physical system. 12 Counsel submits that if one considers the plain and ordinary meaning of force then there is no doubt that the absorption of alcohol into the foetus from the mother is the result of physical movement or physical action as defined in those various dictionary meanings. Counsel submits that the absorption of alcohol into the foetus from the placenta is the result of influence or control exerted by the mother whether consciously or unconsciously. The mother allowing alcohol into her body has, through the passage of alcohol into the foetal blood, instigated a force that influences or affects the development of the foetus. Each intake of alcohol is either a specific event or in amalgam a series of events rather than a gradual process. Counsel finally submitted that even if the Court were to find that there is no application of a force to the foetus there is certainly an oral ingestion of a liquid occurring when the foetus reabsorbs alcohol passed into the amniotic fluid. Counsel notes that as a mechanism, this is not disputed by Dr Dixon although there is a dispute between the two specialists on the effect of this mechanism. Mr Palmer, counsel for the respondent, submits that on the basis of the medical evidence before the Court FAS does not fall within any of the definitions of accident. He submits that it does not fall within paragraph 3(a) because absorption of alcohol is not a "force or resistance external to the human body". Counsel further submitted that even if absorption of alcohol by the foetus was an application of force it cannot be established on the basis of the medical evidence that the relevant injuries arise out of a specific event or series of events rather than a gradual process. Counsel further submitted that FAS does not fall within paragraph (b) because a foetus does not inhale or orally ingest alcohol. Counsel submits that it is not disputed that alcohol consumed by a pregnant mother is transferred to the foetus only through 13 the placenta and that this does not fall within the definitions of inhalation or oral ingestion. Counsel submits that FAS does not fall within paragraphs 3 (c),(d) or (e). DECISION Although some of the expert evidence that has been adduced in this appeal has sought to pertain to the condition of the appellant vis-a-vis FAS, I find that the appellant's own experience and condition has to be put to one side and the issue for appeal be considered in somewhat of an abstract state. It is self evident that the starting point of the mechanism for the condition known as FAS is the ingestion of alcohol by a pregnant woman. Although the syndrome may also be exacerbated or indeed created by ingestion of other drugs, I propose to confine this decision to the ingestion of alcohol. Considering first the definition in section 3(a) of the Act, I find as a matter of common sense that the ingestion of alcohol by a pregnant woman does involve an event or series of events. Each ingestion of alcohol can be considered an event and I find that the definition places no limit on the number of such events so long as each event can be identified as a particular occasion, such as it can be contrasted with the notion of "gradual process" where there is no one "injuring" event as such. To reduce it to its most simplistic level, each mouth full of alcohol can be regarded as an event and each mouthful of alcohol results in that alcohol being absorbed into the blood stream of the mother. As described by Dr Marks, as the mother's blood circulates through the maternal side of the placenta, nutrients and other substances cross readily into the foetal blood. Alcohol in particular crosses the placenta well. Thus, I find that each event of the drink of alcohol involves the introduction of that alcohol into the mother's blood and then into the foetal blood through the placenta. 14 From the description given by the experts I find it can be said that the alcohol from each event, which is the act of ingestion by the mother, results in a flowing of that alcohol, or some part thereof, into the foetal blood through the placenta. Having found that as I have, it now requires consideration of whether the introduction of that alcohol into the blood stream of the foetus involves an application of force or resistance external to that foetus. The medical evidence makes it clear that it is the alcohol which causes the injury to the foetus and which at birth can manifest itself in any one or more of the impairments or deformities that Dr Marks referred to. It is the alcohol which has the deleterious effect and thus, I find that for the purposes of the definition of accident it must be the alcohol which is the force, because it is the force that must result in the personal injury . We know that the alcohol enters the placenta through the mother's blood stream as part of the natural way that nutrients, as well as toxic substances, pass to the foetus for its sustenance and growth. Thus the manner in which the alcohol enters the foetus through the umbilicus is natural and cannot be said to be as a consequence of force. The two experts state that the alcohol is absorbed by the foetus through the placenta. It is the properties of the alcohol which causes the damage to the immature foetus or the respective parts thereof. The definition of foetal alcohol syndrome in Dorland's Medical Dictionary is "a syndrome of altered prenatal growth and morphogenesis occurring in infants born of women who were chronically alcoholic during pregnancy". Thus, I take it from that description that it is the alcohol which causes altered prenatal growth from that which is natural and usual. 15 Alcohol, as defined in Black's Medical Dictionary, is a substance which medically is used as a solvent and as an antiseptic and recreationally it is a widely used drug. It is noted that in larger doses alcohol causes a great deal of mental and physical harm. Alcohol is therefore, inter alia, a drug and in those circumstances I find that it does not have any of the properties of some physical action or movement. All the definitions of force to which the Court was referred involve some physical movement, power exerted or some physical control. I cannot find that a drug such as alcohol can come within that meaning of being a force. If one has regard to the definition of accident in 3(b) it can be seen that the concept of ingestion of a drug which has a deleterious effect is provided for in that definition, where that definition does not require considerations of the application of force or ---- -= resistance. Looking at the provisions of (a) and (b) of the definition section I find that it offers a good example of the statutory interpretation maxim of "expressionunius exclusionest alterius". For the foregoing reasons therefore, I find that the mechanism by which FAS is established or created cannot come within (a) of the definition of accident. I refer now to the meaning in 3(b). For the purposes of this definition I find that it must be the foetus, being the object which suffers the injury, which must do so by means of the inhalation or oral ingestion of the liquid or foreign object. Thus, for the purposes of this subsection the fact that the mother orally ingested the alcohol does not bring the circumstances within this definition. Having regard to the evidence of Dr Marks I find that the condition of FAS cannot come within the definition of (b). Dr Marks states that FAS results from a series of events which result in the intravenous administration of a foreign and toxic substance to the foetus. The foetus does not inhale or ingest the alcohol and therefore by definition intravenous administration of alcohol cannot come within that definition in (b). 16 At this point I should note an area of difference which exists between Dr Marks and Dr Dixon, with the opinion of Dr Marks being relied upon by counsel for the appellant to enable FAS to come within the definition of (b). After advising what the mechanism of alcohol damage to the foetus consists of and how it occurs Dr Marks stated: "The foetal liver is immature; this is essential for the protection of the foetus. If the foetal liver could process toxins at the same rate as an adult liver then any toxins could be degraded by the foetus and released in to the foetal urine which remains a constant source of further intoxication. Some alcohol will be excreted by the foetus in its urine into the amniotic fluid. As the foetus from early pregnancy swallows the amniotic fluid, some alcohol will be reabsorbed and this may be the reason for the more prolonged increase in blood alcohol seen in the foetus compared with his/her adult mother. " Dr Dixon responded to that by stating as follows: "At paragraph 1 1 of the Marks affidavit, there is a reference to the possibility that alcohol absorbed by a foetus is then processed by the liver producing toxins which are then reabsorbed orally. There is some speculation in the Marks affidavit as to whether this may result in further damage to the foetus. I understand that this proposition is just a theory. I am not aware of any literature that supports this theory. Furthermore(sic), it is my opinion that any damage to a foetus caused by the consumption of alcohol by the mother will occur when that alcohol is absorbed through the placenta. Any other toxins reabsorbed orally by the foetus will have little or no additional effect. It could be said that by the time the foetus reabsorbs what, if any toxins are produced by its liver the damage has already been done. " 17 For the purposes of this appeal I propose not to come to any decision on this theory, questioned as it is by one expert. It is accepted by both experts that it is not the accepted method of introducing alcohol to the foetus, which both experts accept is by intravenous administration. For the avoidance of doubt I propose to find that in the overall context of this decision that theory as propounded by Dr Marks has not been considered. Neither counsel has contended that the circumstances of FAS could come within the definition of accident in 3(c)(d) or (e) and I concur with that concession. Finally, I turn to consider the decision of the High Court in Brider and Hughes v ARCIC (AP 120/98) Wellington Registry, delivered on 3 December 1998. That appeal considered whether the claimant Casey Hughes was entitled to cover as a consequence of him being infected with the HIV virus whilst in his mother's womb, the mother having become infected with the virus through her partner, the claimant's father, and he having received that infection by medical misadventure of a contaminated blood transfusion. In essence, the claimant's father passed on the HIV virus to the mother who in turn infected the child, then unborn, and who was born with that infection. Having regard to the particular provision of the Act which was applicable to the claimant Hughes, being entitlement to cover by reason of personal injury by medical misadventure, I find that that decision has no applicability to the present case. The Hughes' decision required considerations of the consequences of treatment not the consequences of accident. Thus, in that case it was not necessary for the Court to consider whether the infection of the foetus was an accident as that was not the issue. Personal injury by medical misadventure and personal injury by accident are two quite separate and distinct categories of injury which are given cover under section 8 (2)(a) and (c) respectively. For these reasons I find that that decision, helpful though it is in the field of medical misadventure, is of no assistance when one is considering personal injury by accident. 18 For the foregoing reasons therefore I find that the contracting of the condition known as Foetal Alcohol Syndrome, does not come within the legal definition of personal injury by accident as it applies to an entitlement to cover under S. 8(2)(a) the Act. It follows then as a matter of law that the appellant cannot be entitled to cover under the Act as she has sought to claim. This appeal has involved a question of law which could be of some importance as both Dr Marks and Dr Dixon have indicated that they have first hand knowledge and experience of children having suffered from this syndrome here in New Zealand. For this reason therefore, I propose to take the somewhat unusual step of granting leave to the appellant, without the necessity of making any formal application, to appeal to the High Court if she wishes so to do. DATED at WELLINGTON this 22 day of June 1999 cathe M J Beattie District Court Judge 89-97.doc(gm)