Sam v Accident Compensation Corporation [2010] NZCA 321; [2010] NZAR 490 (27 July 2010)

Last Updated: 13 January 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA715/2009 [2010] NZCA 321

BETWEEN DESHAN SAM
Applicant

AND ACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 20 July 2010

Court: Glazebrook, Randerson and Stevens JJ

Counsel: J P Miller and J M Miller for Applicant
A D Barnett for Respondent

Judgment: 27 July 2010 at 3.30 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] The applicant, Deshan Sam, was born with cerebral palsy as a result of oxygen deprivation during the later stages of labour. There was a finite list of possible causes for the oxygen deprivation, including placental disease, placental separation or cord obstruction. The evidence from Professor Gluckman, the expert engaged by the applicant’s counsel, was that it was not possible to say which of the list of possibilities was the cause of the oxygen deprivation.
[2] The applicant was refused cover by the Accident Compensation Corporation (ACC). The initial refusal was confirmed by the reviewers. On appeal, the District Court found the applicant’s cerebral palsy was not caused by accident and so ACC cover was not available. The applicant appealed to the High Court on questions of law under s 162 of the Injury Prevention, Rehabilitation and Compensation Act 2001 (the Act). Mallon J dismissed the appeal on 31 October 2008.[1]
[3] Section 163 of the Act provides for a further appeal to this Court by way of case stated on a question of law only. The applicant applied to the High Court for leave to appeal to this Court. The application was declined by Mallon J on 4 November 2009.[2] An application for special leave to appeal was filed in this Court on 18 November 2009.

Application for special leave to appeal

[4] The application for special leave to appeal raises two questions of law:

• (a) Does a proper reading of Accident Compensation Corporation v Ambros[3] mean that, if a claimant adduces some evidence that a claim is covered, the onus then shifts to ACC to show that the claim is not covered?
• (b) Does the ‘born alive’ principle extend retrospectively so as to be relevant to the interpretation of s 25(1)(a) (i) and (e) of the Act and so that causes external to the foetus can be the application of force external to the human body and/or an extreme of environment?

[5] The applicant’s submissions before us, however, concentrated on a third question of law:

• (c) Using statutory interpretation principles does the meaning of s 25(1)(a)(i) and (e) of the Act permit an interpretation that a foetus may suffer physical injury from causes internal to the mother but external to the foetus?

[6] On question (a), the applicant wishes to argue that some of the equally possible causes of the cerebral palsy were accidents and that, this being shown, a tactical burden then fell on the respondent to point to evidence ruling these out as the cause of the injury. The applicant accepts that the legal onus remains with him at all times.
[7] On questions (b) and (c) the applicant wishes to argue that the cord obstruction was the application of a force external to the human body of the foetus, although internal to the mother. The placental causes, leading to deprivation of oxygen in the womb, are argued to be extremes of environment. As the applicant was born alive, it is argued that he can claim compensation for these accidents, which occurred before birth.

Mallon J’s decision on the appeal

[8] Mallon J held that none of the possible causes of the applicant’s cerebral palsy fell within the definition of “accident” in the Act. She considered that, when a foetus is in utero, “the application of a force ... external to the human body” is intended to refer, for the purposes of cover, to a force external to the mother. The foetus, whether viewed as “a person” or not, is still within another human being. On the natural and ordinary words of s 25(1)(a)(i) a force external to the foetus but still occurring within the mother, is not external to the mother’s human body and so not “external to the human body”. She considered that if Parliament had intended the definition of accident to cover forces internal to the mother but external to the foetus, then clearer words would have been chosen.[4]
[9] But, even if she was wrong on that, the Judge considered that, at best, s 25(1)(a)(i) would only apply to the cord related possible causes. Placental disease and placental separation would need to fall within s 20(1)(e). She acknowledged that the deprivation of oxygen to the foetus could be viewed as making the womb environment extreme for the foetus. However, she did not think the word “womb” could be inserted into the definition. In her view, there was no proper basis, even on a generous and non-niggardly view, to depart from the natural and ordinary meaning of “environment” when read in context with “exposure to the elements, or to extremes of temperature or environment”. That seemed to the Judge to contemplate things occurring out in the world and not within a human body.[5]
[10] Finally, looked at overall, cerebral palsy, when resulting during the natural process of labour (and not from medical misadventure), did not seem to Mallon J to be what was intended to be covered as an accident, in the absence of words that make that plain.[6]
[11] In her judgment refusing leave to appeal, Mallon J pointed to a further difficulty with the applicant’s claim. One of the possible causes of the cerebral palsy was placental disease. Mallon J pointed out that this raises the question of whether cover would be excluded under s 26(2) because it was an injury caused “wholly or substantially” by disease. She considered that this appeared to raise another hurdle for the applicant.[7]

Discussion

[12] We consider that Mallon J was undoubtedly correct for the reasons she gave to hold that none of the possible causes fall within the definition of “accident”.
[13] As this is the case, the other two proposed questions of law fall away. It follows that the application for special leave to appeal must be declined.

Result

[14] The application for special leave to appeal is declined.
[15] If there is any question of costs, memoranda must be filed on or before 5.00 pm on Wednesday 4 August 2010.

Solicitors:
John Miller Law, Wellington for Applicant

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[1] Sam v Accident Compensation Corporation [2009] 1 NZLR 132 (HC).

[2] Sam v Accident Compensation Corporation HC Wellington CIV-2008-485-829, 4 November 2009.
[3] Accident Compensation Corporation v Ambros [2008] 1 NZLR 340 (CA) at [54]–[78].
[4] At [43].
[5] At [44].
[6] At [45].
[7] At [8].