New Zealand Case Law: Decisions & Judgments

Topic

Ordinary consequence exclusion

Legal area

Court

15 Aug 2019

MT v Accident Compensation Corporation (Treatment Injury)

Citation

[2019] NZACC 97
Court

District Court

On the balance of probabilities the appellant's hepatitis C was more likely acquired via non-treatment routes (prior injecting drug use and possibly unsafe tattooing) rather than from the blood transfusions; the expert medical evidence and contemporaneous records outweigh the appellant's inconsistent affidavit, therefore ACC correctly declined cover and the review decision is upheld.
3 May 2017

NG v Accident Compensation Corporation (Treatment Injury)

Citation

[2017] NZACC 48
Court

District Court

On the facts and expert evidence the cerebral infarction was unpredictable and untoward, not an obvious or necessary part of the surgery; therefore it was not an 'ordinary consequence' under s 32(1)(c) and the exclusion did not apply; appeal allowed and ACC decision declining cover set aside.
29 Feb 2016

PK v Accident Compensation Corporation

Citation

[2016] NZACC 44
Court

District Court

The court accepted expert evidence that the scar formation and resulting abdominal skin overhang were expected outcomes of the incision and normal wound healing, particularly given prior surgeries and pregnancies, and thus constituted an ordinary and/or inevitable consequence of the treatment rather than a physical injury under the Act; the appellant failed to prove otherwise on the balance of probabilities, so the reviewer’s decision to decline cover was correct.
31 Jul 2015

HT v Accident Compensation Corporation

Citation

[2015] NZACC 214
Court

District Court

Insufficient evidence that informed consent was not obtained and independent expert evidence establishes the hypertrophic tethered scar is an ordinary and necessary consequence of an appropriate midline incision given the large fibroid uterus and elevated BMI; therefore no treatment injury under the Act and appeal is dismissed.
4 Oct 2013

ACCIDENT COMPENSATION CORPORATION v STUDMAN [2013] NZHC 2598

Citation

[2013] NZHC 2598
Court

High Court

The District Court erred in finding cover because the claimant did not establish a discrete physical injury as required by s26; stiffness and pain alone are not physical injuries and without identification of an underlying physical injury the ordinary‑consequence exclusion in s32 applies, so the claim for treatment injury fails.
29 May 2013

Sturgess-Monks v Accident Compensation Corporation

Citation

[2013] NZACC 150
Court

District Court

On the balance of probabilities the evidence did not establish that the first surgeon failed to excise the pilonidal sinus or that ACC unreasonably failed to investigate; the ongoing symptoms were consistent with recognised recurrence/ordinary consequences of treatment and therefore did not constitute a compensable treatment injury; appeal dismissed.
15 Jun 2012

Groves v Accident Compensation Corporation

Citation

[2012] NZACC 200
Court

District Court

The dental caries was caused by treatment‑induced xerostomia and, because treating professionals had a continuing obligation to provide preventive or supervisory dental management (which was not discharged), the appellant's severe and extensive dental decay was not an ordinary consequence of proper treatment and is therefore a compensable treatment injury; the review decision is quashed and ACC's refusal reversed.
16 May 2012

Holden v Accident Compensation Corporation

Citation

[2012] NZACC 170
Court

District Court

On the balance of probabilities some damage to nerves in the operative field (including the posterior femoral cutaneous nerve) likely occurred, but given the dense scar tissue and the nature of the required dissection the damage was within the range of expected outcomes for that surgery and therefore an ordinary consequence or necessary part of treatment under s32; accordingly the injury is excluded from treatment injury cover and the appeal is dismissed.
2 Mar 2012

Corcoran v Accident Compensation Corporation

Citation

[2012] NZACC 64
Court

District Court

The court found insufficient evidence that the 2009 hernia was caused by the 2008 or 2000 surgery and, even if related to prior surgery, the hernia was an ordinary consequence of that treatment when the appellant's underlying predisposition to herniation is taken into account; accordingly the claim is excluded under s32 and the appeal is dismissed.