27 May 2021
Mesothelioma not caused by work-related exposure can amount to a "personal injury" under s26 where the disease was triggered by an accident (e.g. accidental inhalation of asbestos); s26(2) does not exclude a disease-origin injury that is caused by an accident and therefore cover is available via s20(2)(a).
27 Jul 2020
The Court exercised its broad discretion under r 5.73 to grant a six month extension because the plaintiff responsibly delayed service pending the outcome of an authoritative appeal (Calver) that is likely to determine whether her right to sue exists; granting the extension avoids unnecessary litigation and potential costs exposure with no evident prejudice to the defendant.
21 Jul 2020
The Court exercised its broad discretion under r 5.73 to extend the 12‑month service period by six months because the plaintiff had a good reason to delay service given the Calver judgment and pending appeal which could extinguish her cause of action, and serving earlier would likely have been futile and exposed her to adverse costs consequences.
18 Oct 2019
Mesothelioma that develops from an external accidental cause can amount to a "personal injury" under s 26 of the Accident Compensation Act 2001; the legal question whether non-work-related mesothelioma is a personal injury is one of law capable of bona fide and serious argument and therefore warranting leave to appeal to the Court of Appeal.
8 Jul 2019
Mesothelioma caused by asbestos inhalation is a "personal injury" under s 26(1) and is not excluded by s 26(2) where an identifiable external inhalation event or series culminating in a sufficient dose occurred; inhalation can constitute an "accident" under s 25(1)(b) where the specific occasion is taken to be the occasion (single or the cumulative occasion that completes the sufficient dose) that produced the disease, so the claimant was entitled to cover under s 20(2)(a).
6 Nov 2018
Leave to appeal dismissed because the primary issue was factual: the trial judge's finding that workplace exposure to asbestos was not established on the balance of probabilities was open on the evidence; s60 only applies if exposure is first proved; ACC met its investigatory obligations; no arguable error of law justified leave.
3 May 2018
On the balance of probabilities the appellant failed to establish employment 'involving exposure' to asbestos beyond background/ambient levels during the claimant's tenure; ACC had complied with s 57 investigation obligations and its expert evidence showed no plausible workplace exposure sufficient to satisfy s 30(3), therefore ACC validly declined cover under s 60 and the review decision was correctly upheld; appeal dismissed.
19 Apr 2018
Mesothelioma is a disease and, absent qualifying statutory carve-outs (s20(2)(e)-(h)), is excluded from the definition of personal injury under s26(2); alternatively, even accepting asbestos causation generally, the appellant failed to prove on the balance of probabilities that the asbestos inhalation occurred on the specific occasion required by s25(1)(b); accordingly ACC's decisions declining cover are affirmed and the reviewer erred in holding that mesothelioma per se met the statutory definition of personal injury.
14 Sept 2011
The threshold in s.30(3)(b)(i) requires evidence of employment-related exposure (a discernible element of probable exposure in the employment task or environment); proof of only general background atmospheric asbestos does not satisfy that threshold, therefore the claimant failed to establish a Schedule 2 employment injury and leave to appeal was refused.
2 Mar 2011
'Employment involving exposure' requires a discernible element of probable exposure in the employment task or environment; potential or background exposure alone is insufficient. The appellant failed to prove actual or probable workplace exposure to asbestos on the balance of probabilities, so cover under s30(3) was not available and the appeal was dismissed.