Allenby v H (Medical Misadventure)

The Supreme Court has issued a decision on 9 May 2012 allowing ACC cover for pregnancy following a failed sterilisation operation.  Despite the Court of Appeal decision of Accident Compensation Corporation v D, the Supreme Court found no difficulty in deciding that pregnancy can be “personal injury” capable of being covered by the ACC Scheme.

The ACC Scheme provides cover for “personal injury”, whether it is from an accident, because of certain criminal acts (e.g. rape), and for the non-ordinary or abnormal consequences of treatment.  The case of Allenby v H concerned personal injury suffered as a result of a medical misadventure (now known as “treatment injury” as amended in July 2005).

Having ACC cover is a statutory bar to suing for personal injury.  The Supreme Court has ruled that, as H could be covered for medical misadventure under the ACC scheme, H cannot sue the surgeon who performed the sterilisation procedure for compensation.

H will now have to pursue her claim for medical misadventure with the ACC.  If cover is granted (based on the specific facts of H’s case), H will be able to apply to the ACC for entitlements.  Such entitlements could include payment of treatment costs, rehabilitation (both social and vocational), and weekly compensation if her personal injury gives rise to incapacity for work.

Specifically, this case illustrates how an initial injury (e.g. impregnation following failed sterilisation) may set up a gradual process, disease, or infection” which may in turn cause a personal injury (e.g. pregnancy).  Other examples could include an acute injury to a knee causing on-going osteoarthritis, or work-related hearing loss causing on-going tinnitus, or an acute back injury leading to urinary and faecal incontinence.  In all of these examples, the secondary injury would be covered by the ACC.

However, Justice Blanchard notes that a male’s failed vasectomy resulting in pregnancy would not result in cover for the woman’s pregnancy.  This is because a third party cannot receive cover under the ACC scheme for personal injury, except in limited circumstances, e.g. when an infection caused by a treatment injury is passed directly to that third party, or a person at work directly witnesses a traumatic event causing injury or death to a third party.

Justice Blanchard also notes that there could not be cover in other unwanted pregnancy situations (excluding pregnancy following rape) such as one resulting from a “bursting condom” or from unprotected sexual intercourse.  In these situations, there is no “treatment” and therefore no medical misadventure.

The case demonstrates the inherent tension between the ACC organisation (acting as insurance company and limiting its liability) and a statutory scheme that has replaced ordinary New Zealander’s right to sue for personal injury.  The significance of this case is that the Supreme Court has yet again mandated that the ACC legislation be interpreted expansively in relation to the consequences of personal injury.  Underpinning the judgment appears to be an avoidance of opening up the ability to sue for personal injuries.

Hazel Armstrong & Kristen Bunn