Allenby v H [2011] NZCA 251 (3 June 2011)

Last Updated: 7 November 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA586/2010 [2011] NZCA 251

BETWEEN KEITH ALLENBY Appellant

AND H First Respondent

AND MIDDLEMORE HOSPITAL OF COUNTIES MANUKAU DISTRICT HEALTH BOARD Second Respondent

AND ACCIDENT COMPENSATION CORPORATION Interested Party

Court: Glazebrook, Arnold and Ellen France JJ

Counsel: A H Waalkens QC for Appellant J M Miller for First Respondent P N White for Second Respondent B A Corkill QC for Accident Compensation Corporation

Judgment: 3 June 2011 at 10 am (on the papers)

JUDGMENT OF THE COURT

1. The answer to the question stated is that the first respondent’s pregnancy is not covered as personal injury caused by medical misadventure under the Accident Compensation Act 2001. The appeal is accordingly dismissed.
2. Costs are reserved.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

[1] Ms H , the first respondent, has filed proceedings seeking damages against Dr Allenby, the appellant, and the Counties Manukau District Health Board, the second respondent, following a failed sterilisation operation. In the High Court an order was made by consent that a question be determined prior to trial. The High Court also made an order referring the question directly to this Court under s 64 of the Judicature Act 1908. The question raised is one that was determined by this Court in Accident Compensation Corporation v D (ACC v D).^[1]

Background

[2] The question removed by the High Court to this Court is as follows:

Is the [first respondent’s] pregnancy and/or the caesarean section she had to deliver her [child], said to have arisen as a consequence of the negligence of the [appellant and second respondent] (details of which are contained in the [first respondent]’s statement of claim filed in this proceeding) covered as personal injury caused by medical misadventure pursuant to the provisions of Section 20(2)(b) (prior to its amendment on 1 July 2005) of the Accident Compensation Act 2001?

[3] This Court in ACC v D, considered that question (although phrased in slightly different terms). By a majority, the Court concluded that pregnancy is not a “physical injury” and therefore not a “personal injury” under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (now, the Accident Compensation Act 2001). The effect of the decision, on an appeal from a decision of the Accident Compensation Corporation declining cover, was that pregnancy following a failed sterilisation was not covered as a personal injury caused by medical misadventure under the accident compensation legislation.
[4] We understand that, like Ms H , D, the unsuccessful applicant for cover in ACC v D, has since brought a claim for damages. We are advised that there is at least one other set of High Court proceedings which raise the same issue.

This appeal

[5] Against this background, the appellant and the second respondent submit that this Court should reconsider its earlier decision in ACC v D. Counsel for the appellant and the second respondent both say that the considerations identified by this Court in R v Chilton^[2] as relevant to the question of whether a decision will be reconsidered all support reconsideration. In developing the submissions on this aspect, Mr Waalkens QC for the appellant acknowledges ACC v D relates to a point of statutory interpretation and that there has been no legislative amendment subsequent to the decision. Mr Waalkens, however, says the decision creates a “social and economic incongruity” by leaving plaintiffs like the first respondent having to bring common law claims for damages, and gives rise to inconsistencies. In terms of criticism, academic or otherwise, Mr Waalkens refers to an article based on part of the preparation for a university honours degree by Yasmin Moinfar which is critical of the approach taken.^[3]
[6] As to whether the Supreme Court is the proper court to reconsider the matter, Mr Waalkens submits that ACC v D is so plainly wrong that this Court ought reconsider and overrule it now.
[7] In supporting the approach advocated by the appellant, Mr White for the second respondent endorses the view taken by William Young P in dissent in ACC v D that unless “personal injury” and “physical injury” are “treated as encompassing the usual adverse consequences of medical misadventure, the scheme of the Act is subverted”.^[4]
[8] The first respondent wants to have the law clarified as soon as possible. Her counsel, Mr Miller, advises that she will abide by the decision of the Court.
[9] Mr Corkill on behalf of the Accident Compensation Corporation, an interested party, abides the decision of the Court as to process but contends this Court’s conclusion in ACC v D was correct.

Evaluation

[10] We have concluded that, applying the Chilton criteria, this is not an appropriate case for the Court to reconsider its earlier decision.
[11] The majority in ACC v D saw the question to be resolved in the case as a fairly finely balanced matter of statutory interpretation and one where positions taken by both parties gave rise to some inconsistencies.^[5] That factor militates against this Court revisiting the determination. There is no evidence of changes in social attitudes or practices and limited criticism of the decision and so nothing to suggest it is so plainly wrong as to justify reconsideration of such a recent decision.
[12] Finally, we place weight on the fact there is a possibility of appeal. Generally, the Court should not assume a party will seek leave or, if so, that the Supreme Court would grant leave.^[6] The latter is obviously correct but here the appellant has indicated he wishes to proceed to the Supreme Court and indeed has already attempted to do so.^[7] In these circumstances, we decline to revisit ACC v D.
[13] The effect of that decision is that we answer the question stated in the negative.
[14] The appeal is accordingly dismissed.

Solicitors:
Fisher Lamberg, Auckland for Appellant
John Miller Law, Wellington for First Respondent

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^[1] Accident Compensation Corporation v D [2008] NZCA 576, [2008] NZAR 679.
^[2] R v Chilton [2006] 2 NZLR 341 (CA).

^[3] Yasmin Moinfar “Pregnancy Following Failed Sterilisation under the Accident Compensation Scheme” (2009) 40 VUWLR 805.
^[4] At [77].
^[5] At [54] and [69].
^[6] See the discussion in R v Chilton [2006] 2 NZLR 341 (CA) at [97].

^[7] Minute of Blanchard J, 13 December 2010 and see also minute of Arnold J of 22 November 2010.