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Date: Wed, 23 Nov 2005 07:58:06 +1300

From: Geoff McLay

Subject: The "torts" of the mother in New Zealand


I 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.




Winikeri v Accident Compensation Insurance Corporation (27 July 2005) CIV 1999-485-000008 Wellington

Fogarty J

[1] 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. ..

[14] 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 from injury.

[15] 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.

[16] 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.

[17] 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 [1992] 2 NZLR 436, 444.

[18] In that case the Court applied workers compensation cases, particularly a decision of Fife Coal Co v William Young [1940] AC 479, 488 which recognised injury by accident without the need to establish a precipitating external event.

[19] 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 of force.

[20] "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.

[21] 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).

[22] 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.

[23] 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.

[24] 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.

[25] 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".



Harrild v Director of Proceedings [2003] 3 NZLR 289


Elias CJ


[1] 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.

The 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 2001. …

[3] The Director of Proceedings by her pleadings seeks on behalf of the parents:

a declaration under s54(1)(a) of the Act that the appellant’s actions breached the Code;

damages 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 s57(1)(d).


The claimed breaches of the Code, including any deficiencies in medical treatment, have yet to be established.

[4] 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.

Section 52(2) provides:

(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 proceedings.


[5] 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.

[6] 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.

[7] 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".

[8] 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. …

[12] 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 Act?

[13] 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. …


Does the mother suffer a personal injury through the loss of a foetus due to medical misadventure?

[16] The Human Rights Review Tribunal is empowered by s57 of the Health and Disability Commissioner Act to award damages for breaches of the Code.

57. 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:

(a) 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;

(b) 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;

(c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved person:

(d) Any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.


[17] 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: ...

[18] 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. …

[19] 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.

[20] 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).

[21] 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.

[22] 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.

I 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.


Keith J (agreeing with Elias CJ)

[42] 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.


Blanchard and Glazebrook JJ (minority)


[62] 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 treatment.

[63] 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.

[64] 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.

[65] 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 delivery.

[66] 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….

[67] 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.

[68] 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. …

[69] 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.

[70] 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).

[72] 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 ..

[73] 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.

[74] 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 plain wording.

[75] 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?

[76] 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.

[77] 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.


[McGrath J reached the same result as Elias CJ and Keith J]



[GPM1] quote within case

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