Allenby v H

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

KSB v ACC (Court of Appeal)

In New Zealand, mental injury arising from sexual violation is a coverable injury in our ACC scheme.  The Court of Appeal in the decision of KSB v ACC has clarified the definition of sexual violation; confirming that a partners failure to disclose to his girlfriend that he was HIV positive and having unprotected sex with her constitutes sexual violation.  Therefore, if diagnosable mental injury arising from such sexual violation occurs, it is coverable.

Salient points of the judgment include:

• A person cannot consent to unprotected sexual intercourse if they are unaware their partner carries an infectious disease capable of being transmitted via sexual intercourse (such as HIV).
• In such a situation, a claimant does not need to be infected with the infectious disease for cover for mental injury to be granted.  It is enough that there was a diagnosable mental injury arising from the sexual violation.
• A claimant does not need to prove fault on behalf of the perpetrator of the sexual violation.  The claimant does not have to reveal to ACC the name of the partner, the police do not need to be notified, and there does not need to have been a successful criminal prosecution.
• The claimant does not need to prove whether the perpetrator of the sexual violation knew the claimant had not given consent.

This case serves as a reminder of the purpose of New Zealand’s accident compensation scheme;  the ACC is there to help those suffering from trauma arising from sexual violation; both physical and mental consequences.  This case is not a revelation, but the Courts upholding the underlying principles of the scheme.

Kristen Bunn

Miller v ACC

In the High Court of New Zealand, Wellington Registry

Facts

In 1974, Mr Miller suffered an injury to his back at work, and was granted  weekly compensatory payments. Following the reports of two surgeons, which both stated that the claimant’s condition was due to disease rather than his accident, the payments were suspended in 1978.

Mr Miller obtained a new report in 1993, which said that there was not a disease process  affecting his back, and then made an application to review the suspension of entitlements. The Accident Compensation Appeal Authority made a ruling in 2003 that Mr Miller’s condition was due to a combination of disease and his workplace accident. Under the laws which applied at the time of Mr Miller’s injury, he was entitled to continuous, ongoing weekly compensation. As such, Mr Miller’s compensation was backdated to the date of the wrongful suspension of his entitlements.

Issue

The issue before his Honour Justice Simon France in the appeal to the High Court in Miller v ACC was whether Mr Miller was entitled to interest on his backdated. Section 114 of the Accident Compensation Act 2001 (the Act) states that:

The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment. [Emphasis added]

What is meant by “information” in s114 is critical to the issue of whether Mr Miller is entitled to interest. On one hand, “information” could refer to only the information required to calculate the gross weekly entitlement, primarily medical evidence. However, “information” could also mean everything required for ACC to pay the claimant the correct final amount, such as Work and Income New Zealand payments or IRD special tax codes.

History

When Miller v ACC was heard in the District Court, the Court identified two areas where it felt there was insufficient information under s114 until 2003. Firstly, ACC did not have details of Mr Miller’s WINZ payments, which must be deducted and repaid by ACC; secondly, the Corporation did not have the necessary medical information, as there were insufficient reports supporting the view that Mr Miller’s condition was injury related until 2003. Precedent for this approach is set in cases such as Donovan v ACC (210/2011), where Judge Beattie states:

In the circumstances of this case, I find that necessary information within the meaning of Section 114 was advice from the appellant as to whether or not he had received any income during the period or had received a WINZ benefit.

Arguments

In the appeal at hand, France J had to determine whether the recent Court of Appeal decision ACC v Kearney had changed the law as set out in Donovan. Kearney concerned an individual whose compensation was stopped in 1991, and then reinstated in 2004. As with Miller, the Corporation needed further information to determine the level of backdated compensation, such as any earnings or benefits given, as such income is required to be deducted from backdated compensation payments. In spite of this, the Court in Kearney ruled that Mr Kearney was entitled to interest for the whole period.

Council for Mr Miller contended that Kearney has set a precedent, which applies to all cases regarding wrongful suspension. It was argued that at some point, the claimant will have been receiving compensation, and therefore ACC had the required information for weekly payments. As such, interest should be payable on backdated compensation.

ACC contended that the decision in Kearney applies only to situations where the Corporation is at fault in suspending the compensation, whereby fault refers to situations where blame for the wrongful cession of entitlements is solely due to ACC, not medical evidence received at a later date. The Corporation argued that as there is no fault on their behalf in Miller, interest should not be payable to Mr Miller.

Decision

France J says of the decision in Kearney, that “the focus indeed seems to be on whether the Corporation at some point had the information.” As such, France J favours the appellant’s interpretation of what is meant by “information”. This decision is supported by further case law, mainly at District Court level, one such example being Lethbridge. After the reinstatement of Mr Lethbridge’s compensation, the Corporation did not pay interest to the claimant. However, it was later held by Judge Middleton that ACC were obligated to pay interests, as interest payments were not designed as a penalty on the Corporation, but rather were compensatory in nature.

After discussion of the relevant law, in particular the Kearney case, France J writes:

I consider it is clear that where the Corporation has been paying compensation, stops it and then later it is held that the compensation should have continued, the claimant will be entitled to interest. It seems that this is because at the time of suspension or cancellation the Corporation had all the information it needed. The fact that it later needs further information at the time of reinstatement does not matter.

France J rejects the arguments of the Corporation that backdated interest should only be granted in situations where the Corporation was at fault, and says that in the event of an incorrect suspension “… s114 is to be applied at the time that decision was taken and not at the time the backdating is being calculated.” The District Court decision is found to be erroneous, and hence it is overruled. Mr Miller is therefore entitled to backdated interest payments. [1]

What does degeneration mean? The use and abuse of an ambiguous word

ACC – What support can I get?

Once ACC has covered your claim, they can provide various types of support. The type of help ACC can provide depends on what your needs are.

ACC can contribute to a wide range of medical and related costs, including doctor’s visits, treatment from various other health professionals, surgery, x-rays, prescription costs, etc.

If you need help managing at home following your injury, ACC can arrange various types of help for things like housework, your personal care and childcare.

For more information see:

ACC website – what support can I get?

ACC Fact Sheet

All about the Work Preparation Programme

The Work Preparation Programme will help you get back to work following an injury.

Supreme Court reins in ACC

McGrath v ACC (SC 127/2010)

This case serves as a salient reminder to ACC that it can only make a claimant undergo the vocational independence process when he or she is “likely” to be assessed as vocationally independent; the process is not be used as a mere investigative process.

The future of ACC

ACC Forum Friday 26 August 2011 - Is New Zealand in danger of losing both what is best about the ACC scheme, and our place as a world leader in accident compensation? What can be done?

Costs recoverable for a Review hearing

If you dispute a decision, and the matter proceeds to a Review hearing, there are certain costs and expenses the Reviewer can award. The Reviewer will award these costs, regardless of whether you win or lose the review, as long as he or she believes that the review was reasonably brought.

ACC’s National Serious Injury Service

If you have a serious injury, contact us to ensure you are receiving the appropriate support from ACC.

Occupational Assessors Guide