Harrild v Director of Proceedings HC Wellington AP301/01 [2002] NZHC 1401; [2002] NZAR 513 (22 April 2002)

Last Updated: 1 February 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

^UNDER the Health and Disability Commissioner

Act 1994

AND

IN THE MATTER of an appeal from a decision of the

Complaints Review Tribunal

BETWEEN JNHARRILD

Appellant

AND THE DIRECTOR OF PROCEEDINGS

Respondent

Coram: Wild J

Ronald Young J

Hearing: 15 March 2002

Counsel: C QC and G E Phipps for Appellant

D B Collins QC for Respondent

Judgment: 22 April 2002

RESERVED JUDGMENT OF THE COURT

Solicitors:

Bartlett Partners, Wellington, for Appellant

Health and Disability Commissioner’s Office, Wellington, for Respondent

_Introduction

This appeal raises the question of whether a pregnant woman suffers personal

_{injury if her foetus dies in utero.}

In 2001 the Director of Proceedings brought proceedings before the

^{Complaints Review Tribunal alleging A4 while pregnant had received inadequate} care by the Appellant resulting in the stillbirth of her foetus.

^{In particular it is alleged the Appellant, M’s doctor, failed to respond to} tests which showed significant foetus distress and abnormality at about 31 weeks of her pregnancy. It is alleged that based on these tests the Appellant should have

_{performed a caesarean section ensuring immediate delivery.}

^{A4 says as a result of the Appellant’s omissions and errors the foetus died}

_{in utero. No direct injury or harm to A4 resulted.}

The Health and Disability Commissioner Act 1994 empowers the Complaints Review Tribunal to award damages for pecuniary loss loss of benefits humiliation, loss of dignity, and injury to feelings and punitive damages l)(d)).

The Tribunal cannot award damages in categories if the complainant has suffered personal injury covered by the Accident Compensation Scheme

The Complaints Review Tribunal, in a decision given on 13 November 2001, concluded that had not suffered a physical injury by the stillbirth of her baby and thus she was not covered by the Accident Insurance Act 1998. It is from that conclusion that Dr Harrild appeals.

The issue for this Court might be conveniently summarised as:

^{the death of a caused by medical misadventure ‘personal to}

_{the mother}

The essence of the Appellant’s case is that the death of a foetus in utero is physical injury to the mother. He argues the foetus is so much part of the mother that an injury to it is an injury to the mother. The Appellant says this proposition is supported by the common law which he says treated the foetus and mother as one.

_{The common law position}

The Appellant accepts the Accident Insurance Act does not provide for a foetus to have a separate right to claim from its mother. He says, however, that given the purpose of the Act (see is to provide broad entitlement to compensation then the common law position that a foetus and mother are not separate entities

^{should prevail. Thus it is argued A4 should be entitled to Accident}

_{Compensation for the death of the foetus.}

It is common ground, given the foetus was stillborn, that it was not a legal person nor an insured person itself within the Accident Insurance Act 1998. The “born alive” rule is well established in common and was not challenged in this case. (See R v Sullivan Lemay et al 63 CCC (3d) 97; v British

^{Pregnancy Advisory Service Trustees and 2 All ER 987; In re F (in}

_{utero) (1988) 2 All ER 193).}

The Appellant’s submission is based on the proposition that if the foetus is

_{not a legal person it must be “part of the mother”.}

The Appellant’s argument that in common law the foetus and mother are as one is based on a line of authority which denies legal rights to a foetus until birth ^{(see v British Pregnancy Advisory Service Trustees and another (supra); and}

_{In re F (in utero) (supra).}

In F (in utero) (supra) a question arose as to whether a court could make a foetus a ward of court. ^{The court concluded it did not have the power to do so and}

observed “only orders to protect him or her [the foetus] which the court could make would be with regard to the mother herself’. _{(See also Burton v Health} Authority de v and Sutton Health Authority [ 3 All ER 833).

[ Thus the argument advanced is if the foetus has no legal rights itself until birth it must effectively be part of its mother and enjoy the same legal rights as her.

[ The only authority directly in support of this proposition seems to be the Florida case of Singleton v Ranz 534 So. 2d 847 (Fla. 5th DCA 1988). The Plaintiff appealed from an order entering summary judgment in favour of the defendant doctor in a medical negligence action arising from stillbirth. The District Court of Appeal held (in part) that the mother had a legal cause of action for negligence or intentional tortious injury to the foetus as living tissue of her body.

[ J concluded:

“An unborn fetus is either a new and separate human being or ‘person,’ temporarily residing within the womb of the host mother, or it is a part of the mother’s body, or both.”

[ The available report of this case is limited. It is clear that the case was ^{decided in the context of a summary judgment only. J’s conclusions appear} to be in conflict with the “born alive” common law rule. An unborn foetus is clearly neither a human being nor a person. Also it is undeniably true that a foetus is part of the mother’s body in the sense that it exists within the mother’s body. However, that observation does not advance the Appellant’s case which needs to establish the foetus is so much part of the mother that it is indistinguishable for Accident Compensation purposes.

^{[ We reject J’s analysis of the alternative states of existence of a foetus.} As will be illustrated, J’s alternatives are not exhaustive nor do they equate with biological reality. Equally, we reject, as illogical, J’s reasoning that, because a foetus is not a legal person and cannot claim, the mother must be able to claim for injury to the foetus. Why, logically, must either have a claim? We do not find v Ranz (supra) helpful.

The Appellant also submits the Supreme Court of Canada in R v Sullivan Lemay (supra) supports his proposition. Care needs to be taken in using principles established by statutory interpretation of criminal statutes where a foetus has been injured or killed. In Sullivan two midwives were charged with criminal negligence causing the death of the infant who died in the course of birth and injury to the mother, At the Supreme Court, acquittals were entered on a jurisdictional point ^{overruling the Court of Appeal.} The Court of Appeal agreed with the proposition by the trial Judge that she would have convicted the midwives of injury to the mother ^{on the basis that the foetus was part of the mother.} The Court of Appeal entered a

conviction.

The Supreme Court concluded the Court of Appeal had no jurisdiction to substitute a conviction in the absence of a Crown appeal. ^{As part of this analysis} Lamer CJC for the majority said:

“The trial Judge explicitly considered whether [the mother] had suffered ^{bodily (independent of the death of the foetus) and concluded that she} had not . . .

^{it would not have been illogical to that bodily harm was done to} [the mother] through the death of the foetus which was inside of and connected to her body and, at the same time, to find that the foetus was a person who could be the victim of criminal negligence causing death.”

This conclusion does not assist the Appellant. The Supreme Court’s observation is simply a truism. Clearly the foetus is “inside and connected” to the mother. Whether the foetus is “the same as” the mother is an entirely separate ^{question. Indeed, it seems clear the context of the quote that the Court had not}

_{heard argument on that point.}

Thus “connection to” ^{and “part of a mother’s body” are no more than} attempts to describe the anatomical and biological position of a foetus. The foetus is connected to the mother through the umbilical cord. ^{It is part of the mother’s body} in the sense that it is connected to it and housed inside it until birth. But none of this equates to sameness. Nor does it support the proposition that injury to the foetus is injury to the mother. ^{The Appellant’s argument effectively begins with the} proposition that harm to the foetus must be compensatable if personal injury by

medical misadventure is the cause. Given the foetus has no separate legal rights, the rights must subsist in the mother. Therefore, proceeds the argument, for the purpose

_{of awarding compensation, the mother and foetus are to be treated as if one person.}

The first proposition in the argument above is a misapprehension. The foetus is only compensated if the statute provides for its compensation. It does not. And the final conclusion that mother and foetus must be one is a fiction designed to achieve the end of compensation. Clearly, biologically speaking, the mother and

_{foetus are not “one”.}

We prefer the approach adopted by the House of Lords in Reference (‘No. 3 of 1994) [ 3 WLR 422. This case and Sullivan have the common feature that they were decided in the context of a criminal prosecution, and the application of each in a civil context must be approached with care. However, the House of Lords considered the issue by analysis of the relevant biology and

_{contemporary medical knowledge. This approach appeals to us.}

The House of Lords identified what has become known as the “not one but

_{not two” rule.}

^{Lord firstly dealt with the proposition that because the foetus does} not have a human personality it must share a human personality with its mother. He said

_{“This seems to me an entire non sequitur..}

As to what the relationship was he said:

“But the relationship was one of bond, not of identity. The mother and the foetus were distinct organisms living symbiotically, not a single organism with two aspects. The mother’s leg was part of the mother; the foetus was not.

^{And further, the foetus was described by Lord as “a unique} organism” lacking at this stage the entire range of characteristics both of the mother

to which it is physically linked and of the complete human being which it will later become

_{Lord Hope observed at}

“The creation of an embryo from which a foetus is developed requires the bringing together of genetic material from the father as well as from the mother. The science of human fertilisation and embryology has now been developed to the point where the embryo may be created outside the mother

and then placed inside her as a live embryo. This practice, not now uncommon in cases of infertility, has already attracted the attention of Parliament. ..It serves to remind us that an embryo is in reality a separate organism from the mother from the moment of its conception. This individuality is retained by it throughout its development until it achieves an

independent existence on being born. So the foetus cannot be regarded as an integral part of the mother in the sense indicated by the Court of Appeal, notwithstanding its dependence upon the mother for its survival until birth.

_{. . .}

We consider that this is the correct approach to this case. The foetus is not “the same” as the mother. Harm to the foetus is distinct from harm to the mother. situation illustrates the point. The foetus was stillborn. After birth, other

_{than the self-evident mental trauma, the mother had no physical injury.}

And the approach of the House of Lords equates with biological reality. The foetus is not the same entity as its mother and, with modern fertilisation and embryology techniques, the foetus may not even have any genetic material in common with the mother.

_{Accident Compensation}

Nor does the Accident Insurance Act help the Appellant’s case. The statute’s focus is on the “insured”. If it had intended to extend the definition of “an insured” to include a foetus it could have done so. And the statute does extend harm to an insured by including harm to spouses, children or other dependants in certain circumstances (the appellant accepts these extensions do not include a foetus), but

_{not to a foetus (see Accident Insurance Act 1998).}

The Accident Insurance Act 1998 relevantly provides:

“29 “Personal injury”

Personal injury means- . . .

Physical injuries suffered by an insured, including, for example, a strain or a sprain.. added]“.

And 1) provides:

^“39 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts)

An insured has cover for a personal injury if- . . .

The personal injury is any of the kinds of injuries described in section 29(l)(a), (b), or (c)

_{Subsection (l)(c) applies to- . . .}

Personal injury caused by medical misadventure suffered by the insured [emphasis added]. .

Thus the definition of “personal injury” and the definition of “cover” under the Act focus on injuries to an insured.

_Conclusions

We therefore agree with the conclusions reached by the Tribunal. We that those conclusions have the potential for some unattractive results. They include the absence of a remedy where loss has occurred. ^{The example of a} stillbirth following a motor vehicle accident where there is no direct injury to the mother illustrates the point. The mother will suffer loss as a result of the stillbirth including medical and other expenses. ^{But she will not be entitled to compensation} either under the Accident Compensation legislation or under the Health and Disability Commissioner Act (there being no medical treatment). However, our concern must be on the proper interpretation of the Accident Insurance legislation. As to that, we are satisfied that the death of this foetus allegedly caused by medical ^{misadventure, is not personal injury to the mother. is therefore not covered} by the Accident Insurance Act 1998 for the death of the foetus.

_Result

_{The appeal fails and is dismissed, with costs to the respondent.}

J R Wild J

Judgment delivered a am on _{April 2002}