Wed, 23 Nov 2005 07:58:06 +1300
The "torts" of the mother in New Zealand
thought that list members might be interested in the NZ no fault
approach to this issue. The case below considered whether a child
could get access to ACC compensation and treatment for the effect
of fetal alcohol syndrome. One of the interesting things about it
is the centrality of the concept of "accident" to deny
cover, Although the judge and the Act does seem to give compensation
for foetal injuries", if the child is born alive and there
is a particular accident, A previous decision had held that still
birth is an injury to the mother and can give rise to compensation
to the Mother, I have also given you an extract. That case was an
attempt by Mother to sue for negligent treatment that supposedly
led to the still birth.
v Accident Compensation Insurance Corporation
(27 July 2005) CIV 1999-485-000008 Wellington
The appellant is the grandmother of Kahurangi Winikerei, a young
girl. Mrs Winikerei filed a claim on 13 April 1995 for cover and
treatment for Kahurangi for the effects of alcohol consumption during
pregnancy by Kahurangi’s mother. The ACC declined the claim
because it considered it did not meet the definition of an accident
under s 3 of the Accident Rehabilitation and Compensation Insurance
Act 1992. That was the statute then covering the ACC scheme. ..
The Accident Compensation Scheme was introduced by Parliament by
the Accident Compensation Act 1972. The long title of that Act is
as follows: An act to make provision for general safety and prevention
of accidents for the rehabilitation and compensation of earners
who suffer personal injury by accident in respect of which they
have cover under this Act and of persons who in New Zealand suffer
personal injury by a motor vehicle accident; and for the compensation
of certain dependants of those earners and persons where death results
 The phrase "personal injury by accident" was not
defined in the Act other than to say that it included incapacity
resulting from an occupational disease.
It is obvious that it was not defined because the concept was well
known to the law. The concept was used in the Workers Compensation
legislation and dates back, as far as New Zealand is concerned,
to at least the Workers Compensation for Accidents Act 1900, s 6.
In those statutes the concept was not further defined. By the time
the Accident Compensation Act 1972 was enacted there was a large
body of case law applying the concept. Parliament obviously considered
that that case law should continue to apply.
Counsel were agreed that the extended definition of personal injury
by accident, particularly in ss 3(a) and (b) above were introduced
by Parliament to prevent broad applications of the concept. The
reasons for the change are discussed by Gault J in the [Mitchel]
case  2 NZLR 436, 444.
In that case the Court applied workers compensation cases, particularly
a decision of Fife Coal Co v William Young  AC 479,
488 which recognised injury by accident without the need to establish
a precipitating external event.
It is abundantly plain from this history that Parliament in the
1992 Act took the policy step of narrowing the concept of personal
injury by accident to require an external event involving the application
"Force" in the context of ordinary use of the word "accident"
refers to a significant force causative of injury. It is not the
concept of force as used in physics, which is any influence sufficient
to disturb a particle of matter in its state of rest or from its
course if it is in motion.
The narrowing of the definition of accident in subs 3(a) brings
the concept much closer to the ordinary English meaning of personal
injury by accident. It is simply not part of that ordinary English
usage to say that the baby suffered an accident because the mother
drank alcohol during the pregnancy. The act of swallowing alcohol
is a forceful action inasmuch as it propels the alcohol into the
body of the mother. But that is a different use of the word force
from that contemplated by Parliament in the definition in s 3(a).
 Whatever the uncertainties as to the scope of personal injury
by accident under the 1992 Act, it falls well short of capturing
the events which led to the baby’s condition.
I turn to s 3(b). It is apparent immediately that in s 3(b) Parliament
is distinguishing personal injury by accident occasioned by the
inhalation or oral ingestion of something dangerous on a specific
occasion, from the taking in of dangerous matter over a period of
time. So the inhalation by a fireman of noxious fumes leaking from
a crashed tanker is an accident, whereas the inhalation of glue
fumes by a wood joiner over 20 years is not an accident.
It is noteworthy that in s 3(a) Parliament refers to a specific
event or series of events but in s 3(b) it simply refers to "on
a specific occasion". It does not say: on a specific occasion
or series of specific occasions.
Theoretically it might be possible for a baby to suffer damage by
the foetus swallowing amniotic fluid containing sufficient alcohol
to cause damage. But that can in no way be said to be the character
of this application for cover. The application for cover for this
young girl is based on her presenting behavioural and intellectual
problems which appear to be "a result of exposure to alcohol
prior to her birth". This is the opinion of the clinical geneticist
dated 13 March 1996. Plainly, the clinician is talking about continued
exposure. The clinician is not talking about one specific occasion,
let alone the theoretical possibility that the occasion was the
ingestion of amniotic fluid. The reality of the case is that it
is built on the behaviour of the mother drinking alcohol during
the pregnancy. This behaviour cannot be brought within s 3(b), as
an event on a "specific occasion".
v Director of Proceedings  3 NZLR 289
 The appeal concerns a claim to the Human Rights Review Tribunal
under the Health and Disability Commissioner Act 1994. The claim
is brought by the Director of Proceedings under the Act on behalf
of the parents of a child tragically still-born. It is claimed that
the mother’s obstetrician, the appellant, breached provisions
of the Code of Health and Disability Services Consumers Rights enacted
under s74 of the Act. In particular, it is claimed that he failed
to exercise reasonable care and skill and failed in obligations
of communication to the parents.
disposal of the appeal turns on the relative scope of the compensation
regimes available under the Health and Disability Commissioner Act
and the general system of compensation for personal injury now constituted
under the Injury Prevention, Rehabilitation, and Compensation Act
The Director of Proceedings by her pleadings seeks on behalf of
declaration under s54(1)(a) of the Act that the appellant’s
actions breached the Code;
under s57(1)(a) for pecuniary loss (identified in the pleadings
as cremation expenses of $282.00 and $16,875.00 for the income foregone
by the mother during her pregnancy); damages of $60,000 under s57(1)(c)
for humiliation, loss of dignity and injury to feelings said to
have arisen because the parents were: not properly and adequately
informed of the clinical condition of their baby; denied the opportunity
to request or insist upon the appropriate intervention and management
of the mother’s pregnancy; and spoken to in an intimidatory,
rude and insensitive manner; and exemplary damages of $10,000 under
claimed breaches of the Code, including any deficiencies in medical
treatment, have yet to be established.
The appellant raised an objection that the claim arises directly
or indirectly out of a personal injury suffered by the mother which
is covered by the Injury Prevention, Rehabilitation, and Compensation
Act 2001. As such, it was pleaded that the claim is statute-barred
by s52(2) of the Health and Disability Commissioner Act.
(2) If any person has suffered personal injury (within the meaning
of the Injury Prevention, Rehabilitation, and Compensation Act 2001)
covered by that Act, no damages (other than punitive damages in
accordance with section 57(1)(d) of this Act) arising directly or
indirectly out of that personal injury -
(a) may be sought by or on behalf of that person in any proceedings
under section 50 or section 51 of this Act;
(b) may be awarded to or for the benefit of that person in any such
It is not clear to what extent the claims brought by the Director
of Proceedings are affected by the objection. Some are clearly distinct.
It is not suggested that the father suffered any personal injury.
The extent of any claim he has under the Health and Disability Commissioner
Act was not the subject of argument on the appeal. The claim for
a declaration of breach of the Code is not precluded by s52(2),
which is concerned with claims for damages. The declaration is available
not because of personal injury (which may or may not be a consequence
of the failure to provide services with reasonable care and skill)
but because of breach of the Code. And the claim for exemplary damages
is specifically preserved by s52(2) even if the claim arises out
of a personal injury.
 Here, no damages for personal injury are expressly claimed on
behalf of either parent. The claimed breaches of Right 4 of the
Code relate to the alleged failures of the appellant to identify
the risk to the unborn child, to properly communicate and co-operate
with other specialists involved, and to his manner in communicating
the death of the baby to the complainants. Depending upon how they
are eventually justified, some of these damages claims (particularly
the failure to identify the risk, and the failure to co-operate
with other specialists) may well be for compensatory damages arising
directly or indirectly out of the loss of the child. The breaches
of Right 5(1) are based upon the manner of the appellant’s
communications with the complainants.
On the face of the pleadings, the claims for damages for humiliation,
loss of dignity and injury to feelings in the failures of communication
and empowerment do not necessarily indicate a claim for "damages
... arising directly or indirectly out of ... personal injury".
No details of quantification of the claim are given. Nevertheless,
the parties seem to have assumed that the claims were intended,
at least in part, to cover compensation for the loss of the child.
The size of the claim suggests that may be so. In those circumstances,
the Complaints Review Tribunal (the precursor of the Human Rights
Review Tribunal) dealt with the issue of cover under the Accident
Rehabilitation and Compensation Insurance Act 1992 as a preliminary
point. The Tribunal framed the question for its determination as
being "whether the complainant mother suffered a personal injury
by the stillbirth of her baby".
The Tribunal held that the proceedings were not affected by s52(2)
of the Health and Disability Commissioner Act because the damages
sought did not arise directly or indirectly out of a personal injury
covered by the Accident Insurance Act 1998 (now replaced by the
Injury Prevention, Rehabilitation, and Compensation Act 2001). That
conclusion was reached on the basis that the unborn child was not
covered by the Accident Insurance Act 1998 and an injury to the
unborn child did not constitute an injury to the mother. …
 The compensatory regime provided by the Injury Prevention,
Rehabilitation, and Compensation Act 2001 excludes remedy under
the Health and Disability Commissioner Act only in relation to damages
to compensate, directly or indirectly, for personal injury covered
by the 2001 Act. Claims for damages which do not arise from such
personal injury can be made by the Commissioner even if the action
in breach of the Code can also be characterised as medical misadventure
and may also give rise to cover under the Injury Prevention, Rehabilitation,
and Compensation Act 2001. The starting point is the scope of the
claim made: does it seek compensatory damages arising directly or
indirectly from a personal injury by accident for which there is
cover under the Injury Prevention, Rehabilitation, and Compensation
It is unfortunate that the scope of the claim for damages remains
unclear on the pleadings. It has not yet been the subject of findings
of fact. Whether the mother suffered or did not suffer a personal
injury for which she has cover under the Injury Prevention, Rehabilitation,
and Compensation Act may not arise for determination. The question
may prove to be hypothetical, depending upon how the claim for damages
is ultimately cast. The general point is of considerable importance.
If a mother suffers no physical injury by reason only of the birth
of a still-born child through medical misadventure, she cannot be
compensated for any consequential mental injury under the Injury
Prevention, Rehabilitation, and Compensation Act (s26(1)). Such
result prompts caution. …
the mother suffer a personal injury through the loss of a foetus
due to medical misadventure?
The Human Rights Review Tribunal is empowered by s57 of the Health
and Disability Commissioner Act to award damages for breaches of
Damages - (1) Subject to section 52(2) of this Act, in any proceedings
under section 50 or 51 of this Act, the Tribunal may award damages
against the defendant for a breach of any of the provisions of the
Code in respect of any one or more of the following:
Pecuniary loss suffered as a result of, and expenses reasonably
incurred by the aggrieved person for the purpose of, the transaction
or activity out of which the breach arose;
Loss of any benefit, whether or not of a monetary kind, which the
aggrieved person might reasonably have been expected to obtain but
for the breach;
Humiliation, loss of dignity, and injury to the feelings of the
Any action of the defendant that was in flagrant disregard of the
rights of the aggrieved person.
 Section 52(2) … prevents recovery of damages for personal
injury covered by the Injury Prevention, Rehabilitation, and Compensation
Act 2001, while preserving the ability to seek "punitive damages
in accordance with section 57(1)(d)". It does not affect the
ability to seek a declaration of breach of the Code even where recovery
of damages for personal injury would be prevented by s52(2). Both
the general limitation contained in s52(2) and the saving for punitive
damages arising directly or indirectly out of personal injury mirror
the scheme of the Injury Prevention, Rehabilitation, and Compensation
Act 2001, s317 of which provides: ...
The effect of Section 51 of HDCA and the two statutes is that personal
injury covered by the Injury Prevention, Rehabilitation, and Compensation
Act 2001 cannot be the subject of a claim for compensatory damages
under the Health and Disability Commissioner Act or in any court
in New Zealand. …
The policy of the legislation is to provide comprehensive cover
to compensate for personal injury, including mental injury which
results from physical injury, in replacement of the remedies previously
available under the common law. I agree with Keith J and McGrath
J that the legislative policy is not to be undermined by an ungenerous
or niggardly approach to the scope of the cover provided.
 I do not think the answer to the appeal turns upon questions
such as whether an unborn child itself is a person in law and has
cover under the Injury Prevention, Rehabilitation, and Compensation
Act, or whether it is biologically "the same" as the mother,
or whether it is a distinct organism. As Lord Mustill pointed out
in Attorney-General’s Reference (at 256), a foetus
is not an "autonomous being". Application of legal principles
developed in relation to autonomous beings is "bound to mislead".
That did not mean in the application of the criminal law in that
case that its existence as a "unique organism" was to
be ignored. Conversely, it seems to me wrong for the purposes of
compensatory cover to ignore the physical bond between foetus and
mother. Foetus and mother are not the same but neither are they
physically free of each other. They are physically connected. The
connection ends with birth or by death of one of the two. Both events
physically impact upon each. The impact is of more significance
than the "sprain" or "strain" given as examples
of physical injuries in s26(1)(b).
For the purposes of assessing whether there is cover under the 2001
Act, I am not attracted by the stark choice of treating the unborn
child either as the same as the mother or as distinct. Where severance
of the physical link between mother and unborn child occurs through
the death of the child as a result of medical error I consider that
physical injury within the meaning of the legislation is suffered
by each. That was the view taken by the Supreme Court of Canada
in respect of a criminal prosecution of midwives on charges both
of negligently causing the death of an unborn child and causing
bodily harm to the mother "through the death of the foetus
which was inside of and connected to her body" (R v Sullivan
and Lemay (1991) 63 CCC (3d) 97). The Supreme Court expressed
the opinion that there would be no inconsistency in guilty verdicts
on both charges.
It is not an answer to say that the connection between mother and
child would have been severed in any event upon birth. Nor that
the complaint made of the appellant is that he did not take steps
to induce the child’s birth and achieve earlier severance
of the physical connection between the two. Such alternative outcomes,
and their undoubted physical impact upon the mother, do not negate
the direct physical injury suffered by a mother where her child
dies in utero. She suffers a personal injury in such loss within
the meaning of the legislation. Her injury is not identical to the
injury suffered by the foetus. I am of the view that the Injury
Prevention, Rehabilitation, and Compensation Act provides cover
to the mother for loss of an unborn child caused by medical misadventure.
conclude that compensatory damages arising directly or indirectly
out of the injury to the mother through loss of the child are excluded
by s52(2) from claim under the Health and Disability Commissioner
Act. Damages which arise from breach of the Code which do not also
arise from the personal injury are not excluded. Nor are punitive
damages which arise directly or indirectly out of the personal injury.
J (agreeing with Elias CJ)
Is it really consistent with the purpose of the personal injury
compensation legislation for the mother in that situation not to
be able to claim under it? It is true that the baby is not the "same
as" the person (but is any part of the human body?) and that
it cannot be equated with an organ of the human body (but organs
can sometimes be transplanted to another and may be stored for a
time outside a human body). On the other hand, at the time of the
crash, the baby is within the mother. They are physically linked
and throughout the pregnancy the baby is sustained by that linkage.
Given those facts and the purpose of the legislation, I conclude
that the still birth is properly to be seen as an injury to the
mother. The present case is no different from the car crash.
and Glazebrook JJ (minority)
This case is one of statutory interpretation. The sections set out
above make it clear that a person has cover under the 2001 Act only
if he or she personally suffers death or physical injury (including
mental injury arising because of physical injury). In the case of
personal injury through medical misadventure, the injury must be
caused by the medical misadventure and suffered by the person receiving
 It is common ground that any medical treatment to ensure immediate
delivery would have been treatment to Mrs M. For the purpose of
this hearing it is also assumed that the failure to provide that
treatment constituted medical misadventure and that this caused
the death of Mrs M’s unborn child.
The remaining question therefore is whether any physical injury
was suffered by Mrs M and, if so, whether it was caused by the medical
misadventure, being the failure to give treatment. In the case of
Mrs M the only possible physical injuries are: her pregnancy and
the delivery of her baby; and the death of her unborn baby.
There may in most cases be good public policy reasons for not regarding
a pregnancy and the delivery of the baby as physical injuries. Even
if they are so regarded, however, the alleged medical misadventure
did not cause those injuries. It may have caused the injuries to
be "wasted" (in that the expectation was for them to result
in a live baby rather than a stillbirth) but it did not cause the
injuries. She thus has no cover in respect of the pregnancy and
Moving then to the death of her unborn child. To treat that death
as direct physical injury to Mrs M is in our view to treat a mother
and foetus as a single entity. This ignores biological reality.
Mrs M’s unborn child was a separate organism, genetically
distinct from her and one designed after a finite period to have
a separate existence. To regard the mother and the foetus as a single
entity is also inconsistent with modern medical practice and with
most women’s experience of pregnancy….
Mr Hodson submitted that a foetus could be equated with a mother’s
organs. We do not accept this. Organs are not separate organisms
and can never have independent existence. They, unlike a foetus,
function as part (and in most cases a necessary and permanent part)
of a person. The same is true of transplanted organs, despite their
genetically different composition.
Mrs M’s child, while in utero, may have been connected to
Mrs M and dependent on her for its development but it was not part
of her. …
 We have also considered whether the fact that the unborn child
was connected to Mrs M is sufficient for the death of that foetus
to be personal injury suffered by her. In our view to reach such
a conclusion would require words to be added to the legislation.
Section 20(1)(a) would have to be interpreted as reading "he
or she or an organism (namely a foetus) connected to him or her
suffers personal injury", and s32(1)(a) would have to be interpreted
as reading "personal injury that is suffered by the person
seeking or receiving treatment given by or at the direction of a
registered health professional or personal injury that is suffered
by an organism (namely a foetus) connected to that person."
Such an interpretation is in our view warranted neither by the plain
words nor the scheme and purpose of the 2001 Act.
In terms of scheme and purpose, the accident compensation legislation
does not cover mental injury unless arising out of physical injury.
This exclusion first appeared in the 1992 Act and has been carried
forward to the 1998 and 2001 Acts. The exclusion reversed the interpretation
that the Courts had given, under the earlier legislation, to the
term personal injury to include mental consequences of an accident
even if unaccompanied by physical injury - see ACC v E
… Policy concerns underlying the 1992 Act were the containment
of costs and the elimination of uncertainty about the boundaries
of the scheme which had extended because of such expansive interpretations
- see Hon W F Birch Accident Compensation: A Fairer Scheme ….
The Birch Report recognised that, as the boundaries of the scheme
became more clearly defined, it might be possible that in cases
not covered by the scheme there would be more court actions for
damages than in the past).
The exclusion of mental injury where it is not associated with physical
injury means that the legislation is already less than comprehensive.
More importantly, interpreting the term "physical injuries
suffered by a person" expansively (as we have been asked to
do) would be against the scheme of the legislation as it would give
cover for any mental injury associated with the death of a foetus
even where there is no direct physical injury to the mother ..
In addition, Parliament has provided an alternative remedy under
the HDC Act where the Code has been breached. This is Mrs M’s
preferred remedy. Access to this remedy should not be denied unless
it is clear that it was not intended to be available. As discussed
above, cover would only be available under the accident compensation
legislation if words were added to the relevant sections to cover
Mrs M’s situation. The position is thus not at all clear.
In this case too the Director of Proceedings is acting on behalf
of both Mr and Mrs M. Any decision that Mrs M was covered by the
accident compensation legislation would not apply to Mr M. There
would be two different regimes operating. Mr M would also clearly
retain any common law rights he may have. This could lead to an
anomalous result and provides a further reason for interpreting
the provisions of the 2001 Act strictly in accordance with their
 Finally, if Dr Harrild’s interpretation is upheld, there
may be a different result depending on whether a child dies shortly
before birth or shortly after. A child who dies shortly after birth
would be covered by the accident compensation legislation in his
or her own right. If the death after birth is caused by injuries
sustained before birth are those injuries still seen as personal
injury to the mother because they occurred before birth? Are they
also seen as injuries to the baby through medical misadventure,
even though they were inflicted when the baby was a foetus and the
person receiving treatment was the mother? If there is dual cover
where a child injured before birth is born alive then two people
could be compensated with regard to what can be seen arguably as
the same injury (leading to obvious apportionment issues). On the
other hand, once a child is born, is any injury seen as an injury
to the child alone with the child’s claim being substituted
for the mother’s, leaving the mother then presumably free
to pursue alternative remedies?
Any difference in position could lead to litigation as to the exact
time and cause of death and the timing and nature of any medical
misadventure. To parents suffering the mental anguish that inevitably
and understandably follows the death of a baby, whether in utero
or shortly afterwards, such litigation would at the least be an
unwelcome intrusion in the grieving process.
In our view there are policy issues to be considered in deciding
whether the accident compensation legislation should be extended
to cover cases such as Mrs M’s or whether the remedies under
the HDC Act should continue to apply. Such a decision is in our
view for Parliament and not the Courts. We comment also that the
entitlements under the 2001 Act do not appear to us well tailored
to the situation of women like Mrs M. For example funeral grants
would not appear to be available as the foetus is not a claimant
– see s69(1)(e). In addition, if a woman has given up work
for the pregnancy (rather than taking parental leave) this will
affect earnings related compensation.
J reached the same result as Elias CJ and Keith J]
[GPM1] quote within case
[GPM2] statute within case
[GPM3] statute within case
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