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03 March 2009
In Accident Compensation Corporation v D  NZCA 576 the Court of Appeal reversed a High Court decision that pregnancy could be considered a personal injury for which compensation is available under the Injury Prevention, Rehabilitation and Compensation Scheme.
The Injury Prevention, Rehabilitation and Compensation Scheme in New Zealand provides a system of state compensation for people who suffer accidental personal injury, irrespective of whether the injury occurs at work, at home or elsewhere, on a 'no fault, no blame' basis. This statutory compensation is intended to replace personal injury claims as a means of compensation for injury. The underlying legislation has been revised on numerous occasions since 1974 and the present act is the Injury Prevention, Rehabilitation and Compensation Act 2001.
In order to be eligible for compensation under the act, a claimant must have suffered a personal injury. The act defines the term 'personal injury' to include "physical injury suffered by a person". 'Medical misadventure' is defined as a personal injury that is suffered by a person seeking or receiving treatment from a registered health professional or that is caused by medical error or medical mishap. The act excludes certain things from the definition of 'personal injury', including injuries caused wholly or substantially by a gradual process, disease or infection, or by the ageing process. However, these exceptions do not apply to personal injury caused by medical misadventure. In previous versions of the legislation, pregnancy caused by certain criminal offences was deemed to be a personal injury, but this position has not survived into the recent versions of the act.
In October 2002 the respondent underwent a sterilization operation. The operation failed and in 2003 she became pregnant. In 2004 she gave birth to a child who had medical conditions requiring ongoing medical assistance.
The respondent sought cover under the act, claiming to have suffered a personal injury caused by medical misadventure, the alleged 'injury' being her pregnancy.
The High Court held that pregnancy could be an injury because it could be said to be a form of harm or an invasion of bodily integrity. It held that pregnancy is an invasion of bodily integrity and has harmful effects when viewed from the perspective of a woman's pregnant body compared to its pre-pregnant state. The court viewed it as arbitrary to draw a distinction between the unwanted physical consequences of sterilization treatment, which were not covered, and the physical consequences of other failed medical treatments. The Accident Compensation Corporation appealed.
A Court of Appeal majority overturned the High Court's decision. In reaching its decision the majority referred to several earlier cases involving claims for pregnancies after failed sterilization operations. It found that such cases advanced the view - with which it concurred - that pregnancy cannot be considered a personal injury, as it arises out of natural processes that the act is not intended to cover. The majority held that the ordinary and natural use of the term 'injury' does not encompass pregnancy, even if it is unwanted, and that such an approach is consistent with the act's exclusion of gradual processes and with its legislative history.
In the dissenting judgment the president held that the phrases 'personal injury', 'physical injury' and 'gradual process' were sufficiently broad to encompass unwanted pregnancy resulting from medical misadventure; unwanted pregnancy could be a usual adverse consequence of medical misadventure in the same way as the progress of cancer following a misdiagnosis, for which cover would also be available.
As the existence of cover under the act functions as a procedural bar to civil claims for injury, women who become pregnant after sterilization will be able to bring civil claims against a doctor or hospital for damages - assuming that they can establish the elements of some cause of action, such as negligence or breach of fiduciary duty - because they are not eligible for cover under the act.
For further information on this topic please contact Chris Browne or Felicity Monteiro at Wilson Harle by telephone (+64 9 915 5700) or by fax (+64 9 915 5701) or by email (email@example.com or firstname.lastname@example.org).
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