The judges delivering the majority ruling said ACC law set personal injury as physical or mental and did not include anything that gave it a 'wider reach'. Photo: Lynn Grieveson

A woman who gave birth after a failed sterilisation operation has lost a Court of Appeal bid to force the Accident Compensation Corporation to pay her because child care obligations mean she cannot work.

However she persuaded the President of the Court, Justice Stephen Kós, that her ongoing ‘incapacity’ rather than the strict ‘injury’ of being pregnant should have qualified for ACC. He was a dissenting minority view as two other judges ruled her injury ended soon after giving birth.

Her lawyers suggested in the Court of Appeal hearing that if her bid for compensation failed she could take her case for damages directly against those responsible for the failed sterilisation operation.

The woman, whose name is suppressed, was paid ACC during the pregnancy because of the failed operation but after it was cut and she was told she could work she challenged it in the district court. A judge supported her case there, the corporation appealed and overturned it at the High Court but the woman took the matter to the Court of Appeal. Its rejection means she will not be paid ongoing compensation to look after the child.

The case centres on the ACC legislation’s meaning of ‘injury’ for which compensation can be paid. The woman’s lawyers argued it was not simply the period of physical and mental challenge presented by the pregnancy but also the incapacity to work, due to obligations to care for the child. The woman’s circumstances are said in the Court of Appeal judgment to be ‘special’ but are not detailed. The father of the child is not assisting and she has no access to family who could help in childcare. Separately, she is receiving state support through the welfare system.

In the majority Court of Appeal judgment, Justices Raynor Asher and Mark Cooper summed up the case:

“On the one hand, Ms J’s child was plainly a consequence of the “personal injury” of pregnancy. Because of the pregnancy, Ms J has a child, which has inhibited her ability to engage in employment. On the other, Ms J’s child is not part of the “injury” of pregnancy insofar as it has physically or mentally affected Ms J. Ms J has recovered. Is simple causation enough? If so, Ms J would be entitled to entitlements under s 103(2) because the failed sterilisation gave rise to a baby being born; but for the pregnancy, the child would not exist. Or, must the barrier that is preventing the claimant from working be part of an ongoing physical or mental injury?”

They said the ACC law set personal injury as physical or mental and did not include anything that gave it a ‘wider reach’.

“Ms J is not unable to work because of her personal injury. She is unable to work because she has a dependent child.”

Justices Raynor Asher and Mark Cooper

“In approaching the question of interpretation, we acknowledge the unique nature of this type of claim. The arrival of a child after a pregnancy is not an event easily compared to any other. There is no obvious analogy in the ACC provisions to the requirements of bringing up a child, and no other event referred to in the Act is comparable,” the judges wrote.

“Once the mother is physically and mentally recovered, she will not be unable to work any more “because of” her pregnancy. She will no longer be pregnant and have no physical or mental symptoms of the pregnancy. Her inability to work will arise because of the need to provide care for the child. Ms J is not unable to work because of her personal injury. She is unable to work because she has a dependent child.”

They said the basis of ACC was medical testing to determine if clients were ready for work and in this case a medical test would be pointless; clearly the woman was no longer injured or sick.

They rejected a suggestion from the woman’s lawyer that her situation was like a professional footballer losing a leg in an accident and, while recovering, being unable to resume playing the sport. “But there is a key difference. The footballer continues to suffer an injury, the loss of the leg. Ms J, in contrast, has recovered entirely from her pregnancy.”

The judges acknowledged the need to interpret ACC law in a ‘generous and unniggardly way’ but could not get past the requirement as they saw it for ACC to “focus squarely on medical barriers to employment.”

The majority concluded: “Ms J may be seen as deserving support but Parliament, through legislation, dictates the extent of that support from the public purse. It is our job to interpret that legislation as best we can, to give effect to Parliament’s intention. In our judgment, the cover created by the Act plainly does not extend to loss of earnings compensation when a healthy mother is bringing up a child.”

Justice Kós, however, would have accepted the woman’s argument.

“Some injuries deduct — such as the footballer who lost his leg. Some are neutral. Ms J’s is the unusual case of the injury that adds.”

Justice Stephen Kós

“It is common ground” he said in a dissenting opinion, “that the failed sterilisation caused Ms J an injury for which she has cover under the Act. A baby is the natural consequence of the injury. The need to care for the baby is also a natural consequence of the injury. The inability of the mother to engage in her former employment, because of the need to care for the baby, may be a third natural consequence of the injury. On the evidence, that was the situation Ms J found herself in. In my view she was entitled to periodic compensation for incapacity under s 103(2) for so long as the need to care for the child precluded her return to employment.”

He discussed a past judgment but said he could not accept views held about pregnancy and childcare from the past.

“It may well reflect different social conditions prevailing over 30 years ago when the judgment was delivered. But in part it seems to reflect an inference that a claim for the costs caused by the need to care for a child born in such circumstances is adventitious and inconsistent with the proper discharge of parental duties. I would draw the contrary inference. Claimants are simply maintaining that the social contract represented by the accident compensation legislation should assist them with the costs of maintaining a dependent child whose existence is the direct consequence of a personal injury for which they have cover for so long as the need to care for the child precludes the mother’s return to work.”

Justice Kós addressed the injured footballer analogy. “Injury and incapacity are not necessarily coextensive. The body may be healed, but the incapacity may endure.59 An example was given in argument. A professional footballer is injured in a motor accident and loses his lower leg. The leg wound will eventually heal, but the incapacity to engage in his former employment will continue.”

But he added: “Some injuries deduct — such as the footballer who lost his leg. Some are neutral. Ms J’s is the unusual case of the injury that adds. For Ms J and in some contrary cases the period of incapacity may be shorter than the period of injury. [An] ever-present baby is as much an employment-incapacitating consequence of her injury as the footballer’s ever-absent leg is for him. Put another way, “but for” her pregnancy and childbirth she would have been able to engage in her employment. Ms J is unable to return to her previous employment “because of her personal injury”

He said her personal and financial circumstances, and therefore inability to pay for childcare, could not be blamed for her situation. “Ms J is no more under an obligation to make those arrangements than she would be to procure an abortion of the foetus or the adoption of the child. Many women will have the ability to make child care arrangements with family or a paid provider. The ability to make such arrangements relieves the incapacity. The inability to make such arrangements does not cause the incapacity.”

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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