Introduction

The Court of Appeal recently reversed a High Court decision that pregnancy could be a "personal injury" for which compensation is available under the Injury Prevention, Rehabilitation, and Compensation Scheme.

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Facts

In October 2002, the Respondent, D, underwent a sterilization operation. The operation failed and in 2003, D became pregnant. In 2004, D gave birth to a child that had medical conditions requiring ongoing medical assistance. D sought cover under the Injury Prevention, Rehabilitation and Compensation Act 2001, claiming to have suffered a "personal injury" caused by medical misadventure. The alleged "injury" suffered was the pregnancy.

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The legislative framework

The Injury Prevention, Rehabilitation and Compensation scheme in New Zealand provides a system of state compensation for people who suffer accidental personal injury, irrespective of whether the injury occurs at work, at home or elsewhere, on a "no fault, no blame basis". This statutory compensation is intended to replace personal injury claims as a means of compensation for injury. The legislation has been through a number of revisions since 1974, and the current Act is the Injury Prevention, Rehabilitation and Compensation Act 2001 ("IPRC Act").
To be eligible for compensation under the IPRC Act, a claimant must have suffered a "personal injury". The IPRC Act defines a "personal injury" as, among other things, "physical injury suffered by a person". The claimant, D, was claiming for a personal injury caused by medical misadventure, which is defined as a personal injury that is suffered by a person seeking or receiving treatment from a registered health professional or that is caused by medical error or medical mishap. The Act excludes certain things from the definition of "personal injury" including injuries caused wholly or substantially by a gradual process, disease or infection, or by the ageing process. These exceptions, however, do not apply to personal injury caused by medical misadventure. In previous revisions of the legislation, pregnancy caused by certain criminal offences was deemed to be a personal injury, but this did not survive into the later versions of the Act.

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Pregnancy as a Personal Injury

The High Court held that pregnancy could be an injury because it could be said to be "harm" or an invasion of bodily integrity. Pregnancy, the Court held, is an invasion of bodily integrity and has harmful effects, when viewed from the perspective of a woman's pregnant body compared to its pre-pregnant state. The High Court viewed it as arbitrary to draw a distinction between the unwanted physical consequences of sterilization treatment which were not covered and other physical consequences of other failed medical treatments which were covered. The Accident Compensation Corporation appealed.
The Court of Appeal, by a majority, overturned the High Court's decision. In reaching its decision, the majority referred to several earlier cases involving claims for pregnancies after failed sterilization operations which advanced the view that pregnancy cannot be said to be a personal injury as it arises out of natural processes which are not intended to be covered by the Act. The Court of Appeal concurred. The majority held that the ordinary and natural use of the term "injury" does not encompass pregnancy, even if it is unwanted. This approach, it said, fits with the Act's exclusion of gradual processes and with the legislative history.
The dissenting judgment by the President held that the phrases "personal injury", "physical injury" and "gradual process" were sufficiently broad to encompass unwanted pregnancy resulting from medical misadventure and that unwanted pregnancy could be a usual adverse consequence of medical misadventure in the same way as the progress of cancer following a misdiagnosis, for which cover would also be available.

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Comment

Because the existence of cover under the IPRC Act acts as a procedural bar to civil claims for injury, one practical effect of this decision will be that women who become pregnant after sterilization will be able to bring civil claims against the doctor or hospital for damages (assuming that they can establish the elements of some cause of action, such as negligence or breach of fiduciary duty) because they are not eligible for cover under the IPRC Act.

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