Ipsofactoj.com: International Cases [2004] Part 10 Case 3 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Harrild

- vs -

Director of Proceedings

ELIAS CJ

BLANCHARD J

GLAZEBROOK J

KEITH J

McGRATH J

25 JUNE 2003


Judgment

Elias CJ

BACKGROUND

  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 motherís 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.

  2. 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. The parties were agreed that there is no relevant difference between the Accident Rehabilitation and Compensation Insurance Act 1992 (in force at the time of the conduct of the respondent complained of), the Accident Insurance Act 1998 (in force at the time the proceedings were instituted and referred to in the judgment of the Complaints Review Tribunal), and the Injury Prevention, Rehabilitation, and Compensation Act 2001. I refer therefore throughout to the current legislation, the 2001 Act.

  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 appellantís 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 motherís 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:

    52.

    (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 appellantís 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. The Tribunal made it clear at paragraph [9] of its decision that it did not exclude the possibility that the mother might suffer injury as well as a matter of fact:

    That the foetus is dependent on the mother for sustenance but the mother is not dependent on the foetus for sustenance is the basis, we think, for the conceptual difficulty we have of accepting that an injury to the foetus constitutes an injury to the mother. It may be possible for an injury to a foetus to cause physical injury to the mother whilst the foetus remains in utero. There is, however, no evidence of that in this case.

  9. The conclusion of the Complaints Review Tribunal was upheld on appeal to the High Court in a judgment of the Full Court reported at [2002] NZAR 513. Wild and Ronald Young JJ proceeded on the basis set out in paragraph [6] of the judgment that

    [t]he Tribunal cannot award damages in categories s57(1) (a)-(c) if the complainant has suffered personal injury covered by the Accident Compensation Scheme (s52(2)).

    The Court cannot have meant to suggest that someone who has suffered personal injury by accident has no recourse under the Health and Disability Commissioner Act for breaches of the Code. It is only the recovery of compensatory damages arising directly or indirectly out of an injury for which there is cover under the Injury Prevention, Rehabilitation, and Compensation Act 2001 that is prevented by s52(2).

  10. It was common ground in the High Court that a still-born child is not itself insured under the Act and is not a legal person. The appellant contended that if the foetus is not a legal person it is "part of the mother". The High Court considered that the appellant needed to establish that the foetus was "so much part of the mother that it is indistinguishable for Accident Compensation purposes" (paragraph [18]). In their judgment, Wild and Ronald Young JJ reasoned that although an unborn child is "inside and connected to" the mother, it is not "the same" as the mother (paragraph [22]). While the foetus is connected to the mother and housed within her body until birth, "none of this equates to sameness" (paragraph [23]). Harm to the unborn child is "distinct from harm to the mother", as a matter of "biological reality" (paragraphs [31] and [32]). Their conclusions were:

    [37]

    We therefore agree with the conclusions reached by the Tribunal. We recognise that those conclusions have the potential for some unattractive results. They include the absence of a remedy where loss has occurred. The example of a stillbirth following a motor vehicle accident where there is no direct injury to the mother illustrates the point. The mother will suffer loss as a result of the stillbirth including medical and other expenses. But she will not be entitled to compensation either under the Accident Compensation legislation or under the Health and Disability Commissioner Act (there being no medical treatment). However, our concern must be on the proper interpretation of the Accident Insurance legislation. As to that, we are satisfied that the death of this foetus allegedly caused by medical misadventure, is not personal injury to the mother. Mrs. M is therefore not covered by the Accident Insurance Act 1998 for the death of the foetus.

  11. The present appeal is brought from the judgment of the High Court. The grounds of the appeal are that the High Court was in error in "failing to find that the claim for damages arising from the birth of a still-born child is not statute-barred by the Accident Insurance Act 1998".

  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. Cases such as Bagley v North Herts Health Authority (1986) 136 NLJ 1014 (QBD, Simon Brown J), Grieve v Salford Health Authority [1991] 2 Med LR 295 (QBD, Rose J), Pearce v United Bristol Healthcare NHS Trust [1996] EWCA Civ 878 and Kralj v McGarth [1986] 1 All ER 54 (QBD, Woolf J) show that it may be unwise to attempt answers to questions such as these without better understanding of the facts or upon assumptions as to the availability of damages at common law.

  14. My preference would have been to decline to answer the point raised by the appeal that "a claim for damages arising from the birth of a still-born child [is] statute-barred by the Accident Insurance Act 1998" until the scope of the claim for damages is clear. Since, however, the other members of the Court do not share that view and are divided on the answers they give to the question raised by the appeal, I find it necessary to express an opinion. It should be understood that the question can only be addressed on the assumption that the mother has suffered no additional personal injury other than though the loss of the child. It is also necessary to emphasise that we are not able on the present appeal to express any views as to whether the damages sought are available or as to their quantification. There may be questions, for example, as to the appropriateness of the motherís claim for recovery of wages for the period of her pregnancy and the fatherís entitlement to damages. Matters such as these are in the first instance for the Human Rights Committee. They may yet give rise to difficult questions of law, not able to be settled by this appeal.

    DOES THE MOTHER SUFFER A PERSONAL INJURY THROUGH THE LOSS OF A FOETUS DUE TO MEDICAL MISADVENTURE?

  15. I have had the advantage of reading in draft the judgments of the other members of the Court. It is not necessary for me to set out in full the provisions of the legislation or the provisions of the Code because they are contained in the judgment of McGrath J. Nor is it necessary for me to repeat the review of the arguments put to us or to survey the case-law cited. None of the authorities cited to us are directly on point. Few are helpful by analogy. They do not deal with legislation comparable to the Injury Prevention, Rehabilitation, and Compensation Act. Particular care is necessary in reasoning from cases concerned with criminal assaults and with the protection of unborn children. The context and the policies addressed are quite different from those in issue on the present appeal, as the discussion of Attorney-Generalís Reference (No 3 of 1994) [1998] AC 245 in the judgment of McGrath J makes plain.

  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) is set out in paragraph [4] above. It 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:

    317.

    Proceedings for personal injury

    (1)

    No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of Ė

    (a)

    personal injury covered by this Act; or

    (b)

    personal injury covered by the former Acts.

    ....

    (4)

     

    Subsection (1) does not prevent any person bringing proceedings under Ė

    (a)

    section 50 or section 51 of the Health and Disability Commissioner Act 1994;

    ....

  18. The effect of the provisions in 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. Under s20 of the Injury Prevention, Rehabilitation, and Compensation Act, "a person" has cover for personal injury caused by medical misadventure suffered by that person. Relevantly, personal injury is defined by s26(1)(b) to include "physical injuries suffered by a person, including, for example, a strain or a sprain". Personal injury is caused by medical misadventure if it is "suffered by the person seeking or receiving treatment given by or at the direction of a registered health professional" and is "caused by medical error or medical mishap" (s32(1)). Medical misadventure is personal injury caused by error ("the failure of a registered professional to observe a standard of care and skill reasonably to be expected in the circumstances") or mishap ("an adverse consequence of treatment") (s5). Medical error can arise out of the giving of treatment or decisions as to whether or not to treat (s33(3)).

  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-Generalís 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 & 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 childís 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.

  23. 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.

    RESULT

  24. In accordance with the judgments of the majority, the appeal is allowed. The appellant is entitled to costs of $3000 together with reasonable disbursements to be agreed by counsel or, failing agreement, fixed by the Registrar.

    Keith J

  25. I have had the advantage of reading the other judgments relating to this tragic case. I need not repeat much of the detail they provide.

  26. I go directly to the claim made by Mr. and Mrs. M and then consider what obstacle, if any, the Health and Disability Commission Act 1994 puts in the way of the claim.

  27. The claim brought by the Director of Proceedings, a statutory position created by the 1994 Act, on behalf of the complainant seeks this relief:

    (a)

    A declaration that the actions of the defendant breached the [Health and Disability Services Consumers Rights] Code (s.54(1)(a));

    (b)

    Damages in the following sums:

    (i)

    Pecuniary loss (s.57(1)(a)) $282 [cremation expenses]

    (ii)

    Pecuniary loss (s.57(1)(b)) $16,875 [nine months income for Mrs. M]

    (iii)

    Humiliation, loss of dignity and injury to feelings (s.57(1)(c)) $60,000

    (iv)

    Exemplary damages (s.57(1)(d))) $10,000.

  28. Those heads of claim are to be related to ss54(1)(a) and (c) and 57(1) of the 1994 Act:

    54.

    Powers of Human Rights Review Tribunal

    (1)

    If, in any proceedings under section 50 or section 51 of this Act, the Tribunal is satisfied on the balance of probabilities that any action of the defendant is in breach of the Code, it may grant one or more of the following remedies:

    (a)

    A declaration that the action of the defendant is in breach of the Code:

    (b)

    An order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order:

    (c)

    Damages in accordance with section 57 of this Act:

    (d)

    An order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the aggrieved person as a result of the breach:

    (e)

    Such other relief as the Tribunal thinks fit.

    57.

    Damages

    (1)

    Subject to section 52(2) of this Act, in any proceedings under section 50 or section 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.

  29. Dr Harrild, the respondent to the claim and the appellant in this Court, contends that the claims are barred by s52 of the Act (referred to at the beginning of s57(1)):

    52.

    Remedies that may be sought

    (1)

    Subject to subsection (2) of this section, in any proceedings before the Tribunal brought by the Director of Proceedings or the aggrieved person, the plaintiff may seek such of the remedies described in section 54 of this Act as he or she thinks fit.

    (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 injuryó

    (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.

  30. The emphasised words indicate that the bar is not as extensive as the general bar included in the accident compensation legislation, now s317(1) of the Injury Protection, Rehabilitation, and Compensation Act 2001:

    317.

    Proceedings for personal injury

    (1)

    No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out ofó

    (a)

    personal injury covered by this Act; or

    (b)

    personal injury covered by the former Acts.

  31. The different scope of the bars is recognised in subs(4) of s317:

    (4)

    Subsection (1) does not prevent any person bringing proceedings underó

    (a)

    section 50 or section 51 of the Health and Disability Commissioner Act 1994; or

    (b)

    section 83 or section 90 or section 122 or section 123 or section 124 of the Human Rights Act 1993.

    The present proceeding is brought by the Director under s50.

  32. It is plain from those provisions that the claims by both Mr. and Mrs. M for a declaration and for punitive damages (heads (a) and (b)(iv)) and by Mr. M for damages under the other heads may continue. Section 52(2) of the 1994 Act has no effect on them. That is to say, whatever the outcome of this appeal, Mr. and Mrs. M will still be able to have resolved their claims that Dr Harrild breached their rights under the Code.

  33. The remaining, difficult question is whether the claim for damages made on behalf of Mrs. M under heads (b)(i)-(iii) (para [27] above) is barred by that provision.

  34. Like counsel and the other members of the Court, I proceed on the basis that there is no relevant difference between the 1992, 1998 and 2001 personal injury statutes. It is accordingly convenient, notwithstanding the fact that the events in issue occurred when the 1992 Act was in force, to refer to the current Act.

  35. The question in terms of ss20 and 26(1)(b) of that Act and the exclusion from the definition of accident in s25(2)(a)(i) is whether Mrs. M has suffered a physical injury, caused by medical misadventure suffered by her, in having her baby die within her.

  36. For present purposes causation by medical misadventure is assumed, as is the proposition, in terms of s52(2) of the 1994 Act, that the damages sought on behalf of Mrs. M under heads (b)(i)-(iii) arise, in whole or in part, directly or indirectly out of her personal injury if she suffered one. As the Chief Justice indicates in her judgment, there is much that is hypothetical in this case. Further, the claims relate to alleged breaches of the rights of Mrs. M to effective communication, as well as to alleged breaches of her rights to services of an adequate standard; the former and perhaps some of the latter would not be barred by the interpretation favoured by Dr Harrild.

  37. Is his interpretation, however, the correct one or is the position adopted by the Tribunal and the High Court to be preferred?

  38. The question has to be answered in terms of the 2001 personal injury compensation legislation. Like the Chief Justice and McGrath J, I find limited assistance, at best, in decisions about criminal liability, guardianship, caesarean sections, and rights in respect of wills and negligence. One limited lesson from those cases is the critical importance of the particular legal, statutory and policy context. As the first paragraph of Lord Mustillís judgment in Attorney-Generalís Reference (No 3 1994) [1998] AC 245 makes plain, the law in some of those areas may be afflicted by historical anomalies and may have lost its intellectual foundations.

  39. I return to the terms of the 2001 Act, the latest version of a major piece of social legislation, and to the philosophy underlying it. I agree with Richardson J in ACC v Mitchell [1992] 2 NZLR 436, 438-439, that a generous unniggardly interpretation of the legislation is in keeping with its policy of providing comprehensive cover for all those suffering personal injury in New Zealand, wherever, whenever, and however occurring. It is true that, since he said that, the coverage of the legislation has been more precisely defined and in some respects narrowed (for instance with the introduction of the medical misadventure and mishap limits) but with one possible exception I do not see those changes as affecting this case.

  40. That possible exception is the exclusion from the coverage of the compensation legislation of mental injury in the 1992 amendments, reversing the effect of the decision of this Court in ACC v E [1992] 2 NZLR 426, a decision given by the same Judges as Mitchell and on the same day. Since the argument here is based on physical injury, not mental injury, I do not see that limit as significant in this case. Accordingly, the generous non-niggardly approach remains applicable.

  41. The High Court judgment provides another, hypothetical set of facts which help test the scope of personal injury in this kind of situation: a still birth resulting from a car crash which does not cause separate physical injury to the mother.

  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.

  43. I would accordingly agree that the appeal be allowed on the terms stated by the Chief Justice.

    Blanchard J & Glazebrook J

    INTRODUCTION

  44. Tragically, Mr. and Mrs. Mís baby, Georgia, was delivered stillborn on 6 October 1997 at Wellington Womenís Hospital, having died in utero some time on 3 October 1997.

  45. The Director of Proceedings, a position created by s15 of the Health and Disability Commissioner Act 1994, has taken proceedings against Mrs. Mís obstetrician, Dr Jeffrey Harrild, before the Complaints Review Tribunal, now the Human Rights Review Tribunal, for alleged breaches of the Code of Health and Disability Services Consumersí Rights (the Code). Among other breaches it is alleged that Dr Harrild breached rights 4(1) and 4(2) of the Code by failing to respond to a number of electro-cardiograph tracings showing significant foetal distress and abnormality and in particular the tracing carried out on the morning of 3 October 1997 which indicated the necessity for immediate delivery.

  46. As a preliminary issue Dr Harrild contended that Mrs. M had suffered personal injury covered by the accident compensation legislation. (The relevant legislation at the time of the commencement of the proceedings was the Accident Insurance Act 1998 (the 1998 Act) and, at the time of the stillbirth, the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act)). If that were the case, then s52(2) of the Health and Disability Commissioner Act 1994 (HDC Act) precludes the Director of Proceedings from seeking on her behalf any damages arising directly or indirectly out of that personal injury other than punitive damages.

  47. The Complaints Review Tribunal on 13 November 2001 held that Mrs. M suffered no physical injury by the stillbirth of her baby and that consequently she had no cover under the 1998 Act. This conclusion was upheld on appeal by a Full Court of the High Court (Wild and Ronald Young JJ) on 22 April 2002.

  48. Dr Harrild appeals against that decision. The sole issue for the appeal is whether the limitation set out in s52(2) of the HDC Act applies.

    PRELIMINARY MATTERS

  49. Mrs. M has never made a claim for accident compensation cover, taking the view that she has no entitlement to such cover. Should she now make a claim, it would be made under the Injury Prevention, Rehabilitation and Compensation Act 2001 (the 2001 Act) Ė see s360 of that Act. It was agreed by the parties that there is no relevant difference between the provisions of the 1992, 1998 and 2001 Acts and therefore for convenience all their references were to the 2001 Act. We take the same approach.

  50. It was further agreed that, because Georgia was not born alive, she has not at any time had cover under the accident compensation legislation. The position would have been different if she had been born alive and died subsequently. She would then have had cover in respect of any physical injuries sustained as a result of events that occurred before birth. It is also common ground that Mrs. M suffered no direct physical injury or harm, apart from the death of the child she was carrying.

    COUNSEL'S SUBMISSIONS

  51. Mr. Hodson QC, on behalf of Dr Harrild, submits that the death of Georgia was physical injury to Mrs. M. Just as a motherís organs are part of her body, being connected by muscular or other structure and thread through the blood supply, so is a foetus, as it is connected in the same manner. This means that any physical injury to the foetus is a physical injury to the mother. Mr. Hodson maintains that this interpretation is in accordance with the position at common law which denies legal rights to a foetus until birth and with the scheme of the accident compensation legislation which is designed to provide comprehensive cover.

  52. He submits further that cover under the accident compensation legislation should be available to women in Mrs. Mís circumstances. Not to provide cover would breach the "social contract" whereby the State, in taking away the common law rights of citizens, undertook to provide comprehensive cover in return. Mrs. M, whatever her present wishes, should not be left to the vagaries of the common law or to relief that may arise out of the medical disciplinary system or under the HDC Act, processes over which as a victim she has little control.

  53. Mr. Collins QC, for the Director of Proceedings, submits that it does not follow that, because a foetus is not regarded by the common law as a separate legal person, it is therefore part of the mother. Mrs. Mís unborn baby was an entity that was dependent upon and connected to her but was neither part of her body nor a separate legal entity. This approach is based on the reasoning of the House of Lords in Attorney-Generalís Reference (No 3 of 1994) [1998] AC 245. To argue that a foetus is part of the mother is to ignore biological reality and medical practice. In biological terms a foetus is distinct from its mother from the moment of conception. Indeed embryologists can now implant into a womanís uterus an embryo that has no genetic connection at all with the birth mother. Medical practice also treats a foetus as a separate patient and in this regard Mr. Collins points to advances in treatments now provided to a foetus while in utero.

  54. Mr. Collins accepts that the accident compensation scheme was a substitute for existing common law rights. However, he points out that there were never common law rights for a mother in relation to a stillborn child. Counsel have been unable to locate a case where a mother has been awarded damages for a stillbirth, absent physical or mental injury to herself, and there is scant authority even where there is such physical or mental injury. He submits that the accident compensation legislation was therefore not intended to apply to such a situation. Parliament has, however, given to a woman in Mrs. Mís position rights under the Code, thus improving on the common law position. (We note that there have in fact been cases related to stillbirths in other jurisdictions Ė see for example the cases referred to by the Chief Justice at para [13]).

  55. The Accident Compensation Corporation did not wish to be heard on the appeal but has indicated that it considers that the judgment of the High Court reflects the correct position.

    THE LEGISLATION

  56. Section 52(2) of the HDC Act provides as follows:

    52.

    (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 injuryĖ

    (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.

  57. Section 20(1) of the 2001 Act in relevant part provides as follows:

    20.

    (1)

    A person has cover for a personal injury ifó

    (a)

    he or she suffers the personal injury in New Zealand Ö; and

    (b)

    the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and

    (c)

    the personal injury is described in any of the paragraphs in subsection (2).

  58. Section 20(2)(b) provides that s20(1)(c) applies to "personal injury caused by medical misadventure".

  59. Under s26(1) "personal injury" is defined in relevant part as:

    (a)

    the death of a person; or

    (b)

    physical injuries suffered by a person, including, for example, a strain or a sprain; or

    (c)

    mental injury suffered by a person because of physical injuries suffered by the person; or

    ....

    (e)

     

    damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.

  60. Under s27 mental injury is defined as "a clinically significant behavioural, cognitive, or psychological dysfunction."

  61. Under s32(1) personal injury caused by medical misadventure means personal injury that:

    (a)

    is suffered by the person seeking or receiving treatment given by or at the direction of a registered health professional (except when subsection (6) applies); and

    (b)

    is caused by medical error or medical mishap.

    [emphasis added]

    DISCUSSION

  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. Mís 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:

    1. her pregnancy and the delivery of her baby; and

    2. 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. Mís 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 womenís experience of pregnancy, as Joanne Manning points out in her article "Court-ordered Caesarean Section Ė the Priority of Maternal Autonomy" (1999) 18 NZULR 548.

  67. Mr. Hodson submitted that a foetus could be equated with a motherís 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. Mís 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. As Lord Mustill said in Attorney-Generalís Reference (No. 3 of 1994) [1998] AC 245, 255:

    The mother and the foetus were two distinct organisms living symbiotically, not a single organism with two aspects. The motherís leg was part of the mother; the foetus was not.

  69. Thus the death of Mrs. Mís unborn child was the death of a separate organism, albeit one connected to her. The separate nature of the unborn child in this case is highlighted by the fact that Georgiaís death is alleged to have been caused by the connection to the mother not being severed by immediate delivery. In our view the death of Georgia cannot be seen as direct physical injury to Mrs. M.

  70. 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.

  71. 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 [1992] 2 NZLR 426. 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 (Wellington, 1991) at p8 and pp16-17. 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 (pp16-17).

  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. Mís 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. Mís 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 Harrildís 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 childís claim being substituted for the motherís, 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. Mís 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 Ė 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.

  78. We would dismiss the appeal.

    McGrath J

    INTRODUCTION

  79. Has a pregnant woman, whose unborn child died as a result of medical misadventure, suffered personal injury on that account so as to have cover under accident compensation legislation?

  80. This question has come before the Court in this appeal as a preliminary point. The issue is of course one of statutory interpretation and it is appropriate that I emphasise at the outset of this judgment that this Court has long seen a generous and unniggardly interpretation of the term "personal injury" as in keeping with the policy of universal coverage under this legislation. The respondent who is Director of Proceedings under the Health and Disability Commissioner Act 1994 has brought proceedings before the Human Rights Review Tribunal against the appellant who is a medical practitioner. The respondent alleges that the appellantís lack of reasonable care and failure to comply with relevant professional standards were responsible for the death of the womanís unborn child.

  81. It is a requirement of the Health and Disability Commissioner Act that no damages, other than punitive damages, may be sought from the Tribunal on behalf of any person who has suffered personal injury for which there is cover under accident compensation legislation. The effect of the High Court judgment under appeal is that the woman has not suffered personal injury so that the Director, as plaintiff, will not be confined in the remedies being sought on behalf of the complainant mother and father of the unborn child. In this Court the practitioner appeals against the judgment of the High Court with the High Courtís leave. The High Courtís judgment is reported as Harrild v Director of Proceedings [2002] NZAR 513.

    BACKGROUND CIRCUMSTANCES AS PLEADED

  82. In a statement of claim filed with the Tribunal on 26 June 2001 the respondent, acting on behalf of Amanda M and Craig M, pleads that on 30 August 1997 Mrs. M was referred by a general practitioner to the appellant Dr Harrild. At the time of referral Mrs. M was 31 weeks pregnant. The appellant is a registered medical practitioner in practice at Masterton who has specialist registration as an obstetrician and gynaecologist. It is alleged that Mrs. M was referred to the appellant by her general practitioner to obtain expert care and management of her pregnancy in light of concerns about her clinical condition.

  83. Mrs. M had three consultations with the appellant during August and September 1997 and on 1 October 1997 was admitted to Masterton Hospital. At the time of admission she felt faint movements in her uterus. A midwife requested that the appellant attend Mrs. M. The respondent says that an electric cardiograph tracing (ECTG) was obtained at approximately 11.40am on 1 October, for the purpose of measuring foetal heartbeat and rhythm, and a further ECTG was obtained at 5pm. The ECTG results were examined by the appellant who, it was said, was also told Mrs. M had not felt any foetal movements for most of the day. The appellant is said to have decided at the time not to intervene but rather simply to continue to observe Mrs. M. A further ECTG was obtained on 2 October 1997 in the morning. After examining the results, the respondent is said to have decided to continue to observe Mrs. M. Later that day he conferred by telephone with another obstetrician and gynaecologist at Wellington Hospital, but it is alleged that he did not convey adequate information about the ECTG tracings to that specialist. A further ECTG was obtained at 5pm on 2 October, following which the respondent saw Mrs. M, without examining her. He is also said to have then expressed the view that the best place for the baby was where it was.

  84. On the morning of 3 October a further ECTG test was carried out, as was another during the late afternoon. An ultrasound scan was then performed by the appellant on Mrs. M following which he advised her and her husband that their baby had died. The baby was delivered stillborn on 6 October 1997 at Wellington Womenís Hospital.

  85. It is the contention of the Director in the proceeding that the tracing obtained from the ECTG on the morning of 2 October showed significant foetal distress and abnormality and that a caesarean section should have been considered but was not at that time. The Director also says that the ECTG obtained during the afternoon of 2 October showed significant abnormalities and that a caesarean should also then have been recommended. The tracing of 3 October is said by the respondent to have indicated that an immediate delivery was required.

  86. There are further allegations in the statement of claim that the manner of communication by the appellant with the two complainants was intimidatory, rude and insensitive.

  87. The statement of claim pleads that the defendant breached rights under the Code of Health and Disability Services Consumers Rights (prescribed by The Health and Disability Commissionerís (Code of Health and Disability Services Consumersí Rights) Regulations 1996: SR1996/18). In particular Rights 4(1), (2), (4) and (5) and 5(1) of the Code are said to have been breached. The relevant provisions are:

    4.

    Right to Services of an Appropriate Standard

    (1)

    Every consumer has the right to have services provided with reasonable care and skill.

    (2)

    Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.

    ....

    (4)

     

    Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of that consumer.

    (5)

    Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

    5.

    Right to Effective Communication

    (1)

    Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided Ö

  88. Finally the respondent asserts that the complainants have not suffered personal injury and do not have cover under accident compensation legislation. The respondent claims on behalf of the complainants pecuniary losses, comprising costs of cremation of $282, and income of $16,875 that Mrs. M would lose for 9 months. There is a further claim for $60,000 for humiliation, loss of dignity and injury to feelings and for $10,000 for exemplary damages.

  89. In his statement of reply the appellant admits that ECTG tracings were obtained on five of the six occasions referred to in the statement of claim. (It is not entirely clear whether or not the first occasion referred to is admitted.) The appellant takes issue with the allegation that he failed to convey adequate information concerning the ECTGs to the Wellington specialist when they spoke. The appellant accepts that abnormalities were shown on the tracing but says that he gave consideration to carrying out a caesarean section and discussed that possibility with the complainants at the relevant times. He asserts he took all reasonable actions in the circumstances to comply with duties in the Code and denies the allegations concerning his manner of dealing with the complainants. He finally asserts that the injury claimed by the respondent is a personal injury by accident and therefore statute barred.

    THE TRIBUNAL'S PRELIMINARY DECISION

  90. The appellant raised as a preliminary point with the Tribunal the issue of whether Mrs. M had cover under Accident Compensation legislation. The Tribunal then heard argument on that question from the parties. Submissions were also sought from the Accident Compensation Corporation under s397 of the Accident Insurance Act 1998 but the Corporation chose not to make any submissions, confining itself to expressing the opinion that it agreed with the submissions that the respondent made to the Tribunal. The Corporation took the same stance in relation to the appeal to this Court.

  91. The Tribunal released a written decision on 13 November 2001: Decision 24/2001 Ref No. CRT20/01. It decided that the mother had not suffered personal injury under the relevant accident compensation legislation such as to give her cover for two reasons. First, the mother did not herself suffer any physical injury on account of the death of the foetus. Secondly the unborn child was not a legal person and accordingly could not be an insured person under the legislation. In the view of the Tribunal the appellant was seeking to have it confer additional rights or status on the mother when under the law the foetus had no rights or status. The dependence of the foetus on the mother for sustenance did not overcome the conceptual difficulty in accepting that injury to the foetus constituted injury to the mother. Nor was there evidence that injury to the foetus had independently caused any physical injury to the mother. Accordingly the Tribunal did not accept that the mother had suffered a physical injury from her stillbirth and it followed that she was not covered by accident compensation.

    THE HIGH COURT'S JUDGMENT

  92. The appellant appealed to the High Court. The appeal was heard by a Full Court, comprising Wild and Ronald Young JJ, who delivered their reserved judgment on 22 April 2002.

  93. The High Courtís judgment accepted the appellantís proposition in argument that the mother and the foetus were not separate legal persons at common law. It did not however logically follow, the Court decided, that the foetus in law was part of the mother. The real question was whether the mother and foetus were the "same person". In reaching the conclusion they were not, the Judges of the High Court were strongly influenced by the approach taken by the House of Lords in rejecting a similar argument, in a criminal law context, in Attorney-Generalís Reference (No. 3 of 1994) [1977] 3 WLR 422. The House of Lords decided that a mother and foetus did not share a common identity as a single person. The biological analysis favoured by the House of Lords appealed to the Full Court which held (para [31]):

    The foetus is not "the same" as the mother. Harm to the foetus is distinct from harm to the mother.

  94. The High Court Judges had earlier said that while the foetus was connected to the mother and part of the motherís body in the sense that it was housed inside her body until birth "none of this equates to sameness" (para [23]). The High Court also rejected a submission, partly based on dicta in the judgment of the majority of the Supreme Court of Canada in R v Sullivan & Lemay (1991) 63 CCC (3d) 97, that because the foetus was "inside of and connected to" the motherís body it would not be illogical to find bodily harm was done to the mother through the death of the foetus, while at the same time holding the foetus was a separate person who could be the victim of criminal negligence causing death. In the High Court Judgesí view the foetus being inside and connected to the mother did not assist determination of whether the foetus was the same as the mother. The Judges saw nothing in the 1998 Act that altered their analysis.

  95. For these reasons the High Court agreed with the conclusion reached by the Tribunal and held that the death of a foetus caused by medical misadventure could not be personal injury to the mother. Their Honours recognised that the result of the Courtís judgment would be the absence of any entitlement to compensation in some situations, where loss was suffered following a stillbirth which was the result of an accident, but they saw that as the consequence of the proper interpretation of the legislation.

    SUBMISSIONS ON APPEAL

  96. Mr. Hodson QC, leading counsel for the appellant, emphasised in his submissions to us that since 1974 New Zealand has had a no fault statutory scheme for compensation for personal injury or death resulting from an accident in substitution for the right to claim damages at common law or earlier statutory provisions. He argued that particular provisions in accident compensation legislation at any time should be interpreted in light of the intention to compensate equitably all persons suffering personal injury, regardless of fault. He submitted that the Court should prefer among available meanings of legislation those which gave cover under the Act for injuries suffered.

  97. Counsel were agreed that a foetus had no status in law to claim either common law damages or statutory compensation. Accordingly, if the High Court judgment was correct, where an unborn child died as a result of medical misadventure, the only avenue for redress was a common law action, or remedies derived through the disciplinary processes or proceedings before the Human Rights Review Tribunal. Mr. Hodson suggested it was strange that negligent causation of death to a foetus through medical misadventure was not personal injury under the statute or, if it was, it had not been suffered by a legal person, but that, he submitted, was the effect of the High Courtís judgment.

  98. The question of interpretation, whether considered under the 1992, 1998 or 2001 legislation, came down, according to Mr. Hodson, to whether Mrs. M had suffered "personal injury". That turned on whether there had been an injury to the mother. He argued that bodily organs "because they are connected by muscular or other structure and thread through the blood supply" were part of the motherís person. Because the foetus of a pregnant woman was connected in the same way, it was equally part of the mother until, at birth, it became a separate person. Damage to the foetus causing death was accordingly an injury to part of the mother and was suffered by her. It followed that there was cover under the Act.

  99. Mr. Hodson also said that the fact additional genes to those of the mother were required to produce an embryo which would develop into a foetus did not make the embryo any less a part of the mother. It was wrong therefore for the High Court to regard the House of Lordsí reasoning as highly persuasive in the different context of the present case.

  100. Counsel for the respondent, Mr. Collins QC, adopted both the reasoning and the result of the High Courtís judgment. His argument on the statutory provisions was presented by reference to the 2001 Act, although he said, it could equally be put under the previous accident compensation legislation. There was cover if, and only if, a person had suffered "personal injury" caused by accident or medical misadventure (under ss20 and 26 of the 2001 Act). While personal injury was defined to include physical injuries suffered by a person under s26(1)(b) the law was clear that the foetus itself was not "a person". And, while Mrs. M was a person, she did not suffer a personal injury under the 2001 Act. Accordingly the legal requirements for cover under the Act were not satisfied and there was no restriction on remedies the respondent could seek for the complainants in the proceeding.

  101. In further developing this argument, Mr. Collins cited case law in overseas jurisdictions in support of the "born alive" rule and his submission that a foetus had no status to claim statutory compensation or bring a common law action. He also argued that a foetus is not in law part of the body of the mother by reference to both case law and academic publications.

  102. Mr. Collins invited the Court to hold that the unborn child of a pregnant woman is in law neither a separate legal entity nor a part of the motherís body. The foetus was rather "an entity dependent upon and connected to (the mother) but not part of her body; or a separate legal entity." Counsel relied strongly on the judgments delivered in the House of Lords in the Attorney-Generalís Reference case and said that dicta in the majority judgment of the Supreme Court of Canada in R v Sullivan & Lemay was consistent with his third model.

  103. Mr. Collinsí overall submission was that as a foetus was not part of the mother an injury to it did not constitute physical injury to the mother. It followed that there was no cover for the death of the foetus under the 2001 Act.

    THE APPLICABLE LEGISLATION

  104. The starting point is the Health and Disability Commissioner Act under which the proceeding has been brought by the Director. The Act provides a scheme for both the Director and, in some circumstances, aggrieved persons to bring proceedings before the Tribunal seeking remedies for breach of the Code of Rights by health care providers. The scheme is facilitative of recovery of compensation for such breaches by consumers of the services. Damages may be awarded for pecuniary loss suffered, loss of benefits which might have been obtained but for the breach, for humiliation, loss of dignity and injured feelings and from any action by the defendant in flagrant disregard of the rights of the aggrieved person (s57).

  105. [105] The Health and Disability Commissioner Act however, restricts the availability of remedies where an aggrieved person has a right to accident compensation. At both the time the Director brought the proceeding and when the Tribunal made its decision on the preliminary point in issue in the appeal s52 of the Health and Disability Commissioner Act so far as relevant provided:

    52.

    Remedies that may be sought Ė

    ....

    (2)

    Where any person has suffered personal injury (within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992) 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 proceeding.

  106. With effect from 1 April 2002, the Act was amended to substitute for the reference to Accident Insurance Act 1998 (the 1998 Act) one to the Injury Prevention Rehabilitation and Compensation Act 2001 (the 2001 Act). Section 360 of the 2001 Act is a transitional provision which states:

    360.

    Claim for cover under former Acts not lodged until on or after 1 April 2002

    (1)

    Subsection (2) applies to a claim for cover, if the claim-

    (a)

    is for personal injury suffered before 1 April 2002; and

    (b)

    is not lodged with the Corporation before 1 April 2002.

    (2)

    A claimant has cover under this Act only if-

    (a)

    the claimant would have had cover under this Act, had the injury occurred on or after 1 April 2002; and

    (b)

    the claimant would have had cover under the Act that was in force at the time that the person suffered the injury.

  107. Parliament has expressed in s360 a clear intention that entitlement to claim for personal injury occurring prior to 1 April 2002, where no claim has been lodged by that date, exists if and only if the requirements of entitlement to cover under the legislation applicable at the date of the injury was suffered and under the 2001 Act (had it occurred after 14 April 2002) were both met. The High Court and the Tribunal applied earlier accident compensation legislation. The transitional provisions, however, apply retrospectively to injuries incurred under the previous legislation. Since taking a different approach where proceedings have been commenced under the Code could produce anomalous results, we are satisfied that the relevant provisions for the purposes of the present proceedings are those in the 2001 Act.

    The effect of s360 is that there must be cover under both the substantive provisions of the 2001 Act and the Accident Rehabilitation and Compensation Insurance Act 1992 for the claimant now to be covered. The relevant provisions of the 2001 Act are as follows.

  108. Section 8 which addresses the concept of cover and provides:

    8.

    Cover

    (1)

    When this Act says a claimant has cover, it means that the claimant has cover for a personal injury-

    (a)

    under any of sections 20,21, or 22, for a personal injury suffered on or after 1 April 2002; or

    (b)

    under Part 10 or Part 11, for a personal injury suffered before that date.

    (2)

    When this Act says that an injury is covered by this Act, it means that the injury is a personal injury for which a claimant has cover.

    Section 20, under the sub-heading "Principles", which states the kind of personal injuries for which there is cover and which so far as relevant to this appeal provides:

    20.

    Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts)

    (1)

    A person has cover for a personal injury if-

    (a)

    he or she suffers the personal injury in New Zealand on or after 1 April 2002; and

    (b)

    the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and

    (c)

    the personal injury is described in any of the paragraphs in subsection (2).

    (2)

    Subsection (1)(c) applies to-

    (a)

    personal injury caused by an accident to the person:

    (b)

    personal injury caused by medical misadventure suffered by the person.

    Section 26, which defines the term "personal injury", as follows:

    360.

    Personal injury

    (1)

    Personal injury means-

    (a)

    the death of a person; or

    (b)

    physical injuries suffered by a person, including, for example, a strain or a sprain; or

    (c)

    mental injury suffered by a person because of physical injuries suffered by the person; or

    (d)

    mental injury suffered by a person in the circumstances described in section 21; or

    (e)

    damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.

    (2)

    Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h).

    (3)

    Personal injury does not include a cardio-vascular or cerebro-vascular episode unless it is personal injury of a kind described in section 20(2)(I) or (j).

    (4)

    Personal injury does not include-

    (a)

    personal injury caused wholly or substantially by the ageing process; or

    (b)

    personal injury to teeth or dentures caused by the natural use of those teeth or dentures.

    (5)

    For the purposes of subsection (1)(e) and to avoid doubt, prostheses does not include hearing aids, spectacles, or contact lenses.

    And s32(1) defines "personal injury caused by medical misadventure as:

    32.

    Personal injury caused by medical misadventure

    (1)

    Personal injury caused by medical misadventure means personal injury that-

    (a)

    is suffered by the person seeking or receiving treatment given by or at the direction of a registered health professional (except when subsection (6) applies); and

    (b)

    is caused by medical error or medical mishap.

  109. It is unnecessary to refer to qualifications to this definition in succeeding subsections.

  110. Counsel accepted that there is no relevant difference between the 2001 and 1992 provisions for these purposes. Section 8 of the 1992 Act extends cover for personal injury by medical misadventure. Section 4(1) provides a definition of personal injury substantially identical to the current one:

    For the purposes of this Act, personal injury means the death of, or physical injuries to, a person, and any mental injury suffered by that person which is an outcome of those physical injuries to that person, and has the extended meaning assigned to it by s8(3) of this Act.

    The definition of medical misadventure in s5 is cast in similar terms.

  111. The definition of medical misadventure in s5 is cast in similar terms. Given the common effect of the provisions of the 1992 Act, it will be sufficient henceforth for me to refer to the 2001 Act.

  112. The kinds of personal injury for which there is cover under s26(1)(a) and (b) are the death of a person (relevant if the foetus is a person qualifying for an entitlement but not otherwise) and physical injuries suffered by a person (relevant if the mother is a qualifying person). The nature of physical injuries that may be personal injury is importantly instanced by reference to a strain or a sprain. Death or physical injury will not give rise to personal injury if any of the exclusions in s26(2) to (5) of the 2001 Act apply, but it has not been suggested by Mr. Collins or in the Directorís pleadings that any do.

  113. Under s20(1)(c) and 20(2) it is also necessary for there to be cover for a personal injury that it is caused by either an accident to the person or medical misadventure suffered by the person. On the pleadings in the present case it is clearly asserted that medical misadventure caused the death of the unborn child.

    IS A FOETUS A PERSON?

  114. Although Mr. Hodson did not argue that the foetus was a person who had suffered personal injury and had cover under accident compensation legislation it is helpful at the outset to consider that proposition. There is a long line of English authority on the point culminating with two decisions which provide particular assistance. The first is Paton v British Pregnancy Advisory Service Trustees [1978] 2 All ER 987. In Paton a married woman wished to have an abortion and consulted two medical practitioners who formed, in good faith, the view that continuance of her pregnancy would risk injury to her physical or mental health. Their certificate provided the basis for a termination lawfully to proceed under abortion legislation. The womanís husband, the father of the child, was not consulted and he brought proceedings seeking to restrain his wife from proceeding with the abortion. Baker P, in the course of considering whether the husband had any legal right that was capable of being enforced by injunction, observed (p989h):

    The foetus cannot in English law, in my view, have any right of its own at least until it is born and has a separate existence from the mother. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant), and is, indeed, the basis of the decisions in those countries where law is founded on the common law, that is to say, in America, Canada, Australia, and, I have no doubt, in others.

  115. Baker P accepted that under the common law an unborn child might have succession rights from conception, but pointed out that the child had to be born alive to enjoy them (p990b). As the husband had no rights capable of enforcement his application for an injunction was refused.

  116. In Re F (in utero) [1988] 2 All ER 193 the Court of Appeal refused an application by a local authority having social services responsibilities to make an unborn child a ward of the court. The application was based on the motherís lifestyle and mental condition. The Court of Appeal upheld the decision of the Judge at first instance dismissing the application. Both May LJ and Balcombe LJ approved the passage cited above in the judgment of Baker P in Paton. Balcombe LJ went on to hold in re F that the Court had no jurisdiction to make an unborn child a ward of court. He said that the only purpose of extending the wardship jurisdiction to include a foetus would be in order to control the motherís actions, for the benefit of the child, and whether that was appropriate was more properly a matter for Parliament than the Courts. Parliament would also be able to set the limitations and conditions (p200h). Similarly May LJ expressed the concern that it was undesirable for the Court to intervene given that intervention would create conflict between the existing legal interests of the mother and those of the unborn child (p196g).

  117. These decisions are also indicative of the settled position in other jurisdictions that at common law a foetus has no legal rights prior to birth and accordingly unless born. Of these the judgment of the Supreme Court of Canada in Winnipeg Child & Family Services v G (1997) 152 DLR (4th) 193 is of particular value in confirming a point implicitly made in Re F (in Utero). The modern justification for the born alive rule is that legal complexities and difficult moral judgments would arise if the Courts were to alter the common law to treat the foetus as a legal person. The majority judgment of McLachlin J in Winnipeg Child & Family Services instances possible actions on behalf of a foetus to prevent abortion or to recover damages from the mother for her lifestyle choices (at p206). It is important however to bear in mind that the rule according legal rights only at birth is in modern times one founded on convenience. It does not rest on developed medical or moral principle.

  118. The position at common law, however, is not of course decisive or necessarily even indicative of whether the Courts have power to protect a foetus under particular legislation. While the lack of legal personality of a foetus in a statutory context at times may be a significant factor, in the end it is the nature of the rights under the relevant statute that must be ascertained. Thus the differing statutory provisions in different countries at different times, have enabled courts to interpret child protection legislation so that it applies to unborn children. A recent example is Re an Unborn Child: [2003] 1 NZLR 115. Heath J, deriving considerable interpretative assistance from the United Nations Convention on the Rights of the Child, found he had jurisdiction under the Guardianship Act to appoint a guardian to an unborn child who was at risk of being featured in a pornographic film during the birth process. Compare the judgment of Tipping J in Re Ulutau (1988) 4 FRNZ 512 where a wardship order was made by the High Court to take effect from the moment of birth.

  119. There are however no indications in New Zealandís accident compensation legislation suggesting that an unborn child which dies, or suffers physical injury, is given rights to compensation as a person who has suffered personal injury. Given Mr. Hodsonís concession, supported as it was by Mr. Collins, it is unnecessary for me to go further on this point other than to say I consider that the concession was rightly made and that the High Courtís application in its judgment of what is known as "the born alive principle" was correct. On the true interpretation of the 2001 Act and earlier legislation an unborn child is not a person who is entitled to accident compensation.

    IS A FOETUS PART OF THE MOTHER?

  120. The more difficult question is whether the mother of child which dies prior to birth, the cause of death being medical misadventure, is a "person" under accident compensation legislation and whether, in those circumstances without more she has suffered "personal injury". Here the focus must ultimately be on the meaning of the phrase "injury suffered by a person" and the scope of the concept of a person under the legislation. The High Court judgment, in holding that the foetus was not a part of the motherís person, places great weight on the analysis of the House of Lords in the Attorney-Generalís Reference No 3 case. At issue in that case was whether the crimes of murder or manslaughter could be committed where an unlawful injury was deliberately inflicted on a mother and her unborn child, by an accused, the child was subsequently born but later died, and the inflicted injuries caused, or substantially contributed to the childís death.

  121. The principal judgment in the House of Lords was that of Lord Mustill who reasoned that the foetus could not be treated as part of the mother, for the purposes of deciding whether a conviction for murder was open on those facts, because the foetus was a biologically distinct organism from the mother. Lord Mustill observed that "they were not, had not been, and in the future never would be Ďthe sameí" (p943c). As Lord Mustill explained it (p943).:

    The mother and the foetus were two different organisms living symbiotically, not a single organism with two aspects. The motherís leg was part of the mother; the foetus was not.

  122. Similarly, Lord Hope said that because its creation required genetic material from both father and mother the reality was that an embryo that developed into a foetus was a separate organism from the mother from the moment of conception (p954(a)). Lord Hope also said the foetus was not an "integral part" of the mother, in the same way as was her arm or leg, because it had developed from an embryo that was a separate organism from conception, retaining its individuality until achieving at birth an independent existence.

  123. This reasoning for treating the foetus as separate from the mother comes down to the lack of a common genetic identity. That must certainly be accepted as a matter of scientific fact. But it is also a fact that a foetus comprises human tissue which is connected to the mother while it is inside her. The argument based on the biological distinctiveness of the foetus does not of itself address, let alone answer, the alternative argument that because it is connected human tissue inside her a foetus is part of the motherís person, albeit, unlike a personís limb, a biologically distinct part of the mother. The opinions of Lords Mustill and Hope in the House of Lords did not discuss the connected tissue argument in any detail although it is implicit from their rejection of the Court of Appealís reasoning that they did not favour it.

  124. The criminal context of the Attorney-Generalís Reference case, however, suggests a particular reason for the preference in analysis. Lord Mustill, was concerned at the potential operation in the case concerned of the grievous bodily harm rule as part of the crime of murder in English criminal law. If an unborn child were to be viewed as part of the motherís person, as the Court of Appeal had held, the grievous bodily harm rule would operate and an assault with intention to cause grievous bodily harm to the mother could translate into one with intent to cause grievous bodily harm to the unborn child as part of the mother. If the foetus was born alive after such an assault, but died following birth, that would then allow a charge of murder to be brought. It is plain that Lord Mustill considered the existing law was not based on principles which justified its "extension to a case where the defendant acts without an intent to injure either the foetus or the child it will become" (p435) In a passage of his judgment which summed up this underlying policy concern he said:

    My Lords, in a system based on binding precedent there could be no ground for doubting a long course of existing law, and certainly none which could now permit this House even to contemplate such a fundamental change as to abolish the grievous harm rule: and counsel rightly hinted at no such idea. But when asked to strike out into new territory it is, I think, right to recognise that the grievous harm rule is an outcropping of old law from which the surrounding strata of rationalisations have weathered away. It survives but exemplifies no principle which can be applied to a new situation.

    [p946 cd, p432bc]

  125. Lord Mustill still had to confront the argument that if the common law stipulated that an unborn child was not a separate person then it followed that the child must be an adjunct of the mother. He rejected this argument in short order by saying of a foetus:

    It is a unique organism. To apply to such an organism the principles of law evolved in relation to autonomous beings is bound to mislead.

    [p943 cd, p429e]

  126. I certainly accept that reasoning directly from the basis of the "born alive rule" to a conclusion that mother and foetus are a single entity is problematic but that is because, as previously discussed, the rule is based on expediency rather than principle. Problems arising from such direct reasoning are instanced in the discussion of the common law status of the unborn child in Court-Ordered Caesarean Sections, J Manning (1999) 18 NZULR 546, 547 to 549. Accepting there are such problems however does not preclude the notion of a "person" having a broader meaning, which encompasses the mother and the foetus as a single entity in a particular legislative context. An unborn child can be part of a motherís "person" in the ordinary meaning of the word. Whether that it is so in the interpretation of a particular statute will turn on the context. Parliament may choose to enact legislation on the basis that the person of a pregnant woman includes the human tissue connected to and inside her body. The High Court judgment however gives no consideration to whether that approach is applicable in New Zealand to accident compensation legislation.

  127. I am reinforced in my view that an unborn child inside the mother is capable of being regarded as part of her as a person by dicta in the majority judgment of the Supreme Court of Canada in R v Sullivan & Lemay (1991) 63 CCC (3d) 97. Following the death of a baby in the birth canal of the mother two midwives were charged with criminal negligence causing the death of a person and, in the alternative, causing bodily harm to a person. The "person" referred to in the first charge was the dead child and, in the second, the mother. The midwives were convicted on the first charge and acquitted on the second. The majority judgment of the Supreme Court, delivered by Lamer CJC allowed the appeal against conviction for causing death. For technical reasons a conviction on the alternative count could not be substituted by the Supreme Court. The judgment observed that a conviction on both counts would have been open to the trial court even if no injury to the mother had occurred other than the death of the foetus. Lamer CJC said:

    I respectfully disagree with the Crownís assertion that Sullivan and Lemay could not have been convicted on both counts in this case. The trial judge explicitly considered whether Jewel Voth had suffered bodily harm (independent of the death of the foetus) and concluded that she had not. Had the trial judge made a different finding of fact, she may well have convicted Sullivan and Lemay on both counts. Furthermore, even if no independent bodily harm was found to have occurred, it would still not be impossible for Sullivan and Lemay to have been convicted on both counts. It would not have been illogical to find that bodily harm was done to Jewel Voth through the death of the foetus which was inside of and connected to her body and, at the same time, to find that the foetus was a person who could be the victim of criminal negligence causing death.

    [p109 Ė emphasis added]

  128. The Supreme Court of Canada was deciding a criminal appeal, albeit one involving less serious criminal charges than the circumstances before the House of Lords in the Attorney-Generalís reference case. The Canadian judgment is nevertheless a helpful instance of a court expressing the view, when interpreting a Criminal Code, that bodily harm might be caused to a woman through the death of a foetus she was carrying because it was connected to and inside her.

  129. The High Court in the judgment under appeal held that the Supreme Court of Canadaís view that harm to a foetus was harm to its mother failed to address the "sameness" question. That however fallaciously assumes that sameness is the only criterion when deciding if a foetus and mother are a single person. It is unnecessary to discuss the United States authorities cited to us on this question which take the matter no further. What must now be addressed is whether the person of a pregnant mother extends to the foetus under the accident compensation legislation.

    THE SCOPE OF "PERSON" IN ACCIDENT COMPENSATION LEGISLATION

  130. The policy of successive accident compensation statutes in New Zealand, including the 2001 Act, has been to provide compensation for persons suffering personal injury without requiring that they show fault to establish their entitlement. The legislative bar to suits at common law is the consequence of the universal nature of coverage under the legislation. A "generous, unniggardly interpretation" of what was personal injury by accident under earlier accident compensation legislation was seen by this Court as in keeping with that legislative policy: Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436, 438 per Richardson J. I regard that approach to interpretation as unaffected by the narrower approach to defining personal injury since the 1992 Act (as to which see MA McGregor Vennell & J Manning Accident Compensation [1992] NZ Recent Law Review 1, 3). Taking the same approach to ascertaining the scope of a "person" entitled under the 2001 Act seems equally in keeping with the purpose of the legislation. That is so even though the effect in some cases will be to deny particular persons their preference for pursuing remedies in claims for common law damages against those they wish to hold responsible. Importantly this policy of barring compensatory remedies has been expressly applied to the procedure for suits under the Health and Disability Commissioner Act by s52. The broad language of the bar would seem to prevent claims for damages on behalf of any persons which in reality arise from personal injury. It is unnecessary to explore any arguments as to possible limits to the scope of the bar under the Act in this appeal.

  131. This approach to interpreting accident compensation legislation favours a broad rather than a restrictive meaning being given to whether any "person" has suffered personal injury. Two meanings of "person", each of which has been discussed in this judgment, are available on the language of the statute. I consider it is both a restrictive and, in the context of accident compensation legislation, an artificial interpretation to prefer the meaning which isolates from a "person" entitled to claim compensation an unborn child that is connected to and inside her at the time the child suffers the medical misadventure causing injury. To do so because of the absence of a common genetic identity between mother and unborn child is to prefer a strictly scientific approach to a question of legal meaning, in a context where that does not serve the policies of the legislation in relation to coverage. Nor can that approach be consistently applied. It could not for instance be seriously suggested that injury to a transplanted organ was not part of a "person" otherwise having an entitlement to compensation.

  132. The High Court Judges placed some weight on s357 of the 1998 Act (equivalent to s32(6) of the 2001 Act) extending the scope of personal injury caused by medical misadventure to infection suffered by a spouse or child of an insured person. I do not regard that provision as throwing any light on the scope of a "person" who is entitled to claim or as favouring a scientific approach to the meaning of "person".

  133. The alternative of attributing to "person" a broader meaning which extends to human tissue that is connected to and inside of the body of a woman is one that is open on the ordinary meaning of "person". That is adequately demonstrated by reference to the Canadian Courtís discussion. The fact that the unborn child is not permanently connected to or inside of the mother is a consideration that does not negate the availability of the connected human tissue meaning at the time of injury to the foetus. This meaning, to my mind, better accords with the policy of legislation intended to compensate for personal injury on a broad basis, whether or not attributable to the fault of another. By holding that in the present statutory context a foetus is part of the person of the mother, so that injury to a foetus is personal injury to that person, I am not of course saying that it is appropriate to view an unborn child as part of the mother in all contexts. In the area of obstetric practice, for example, plainly it is not. The present case is however one which concerns the meaning of accident compensation legislation rather than the requirements of obstetric practice.

  134. Where a child is born alive after suffering ante natal injuries caused by medical misadventure, the child is entitled to claim compensation under the 2001 Act. The mother may still be entitled to do so in respect of physical and mental consequences affecting her. At times apportionment may be necessary to avoid duplication of recovery.

    CONCLUSION

  135. It follows that in my view the appellant has established that Mrs. M is a "person (who) has suffered personal injury" by reason of the death of her unborn child. The Directorís pleading is that this was caused by medical misadventure, for which the appellant is responsible. She has suffered personal injury for which there is cover under the Act and by s52 there is a bar from seeking damages other than punitive damages under s57(1)(a) which arise directly or indirectly out of the personal injury.

  136. For these reasons I would allow the appeal with the consequences as to costs set out in the judgment of the Chief Justice.


Cases

Bagley v North Herts Health Authority (1986) 136 NLJ 1014; Grieve v Salford Health Authority [1991] 2 Med LR 295; Pearce v United Bristol Healthcare NHS Trust [1996] EWCA Civ 878; Kralj v McGarth [1986] 1 All ER 54; Attorney-Generalís Reference (No 3 of 1994) [1998] AC 245; R v Sullivan & Lemay (1991) 63 CCC (3d) 97; ACC v Mitchell [1992] 2 NZLR 436; ACC v E [1992] 2 NZLR 426; Harrild v Director of Proceedings [2002] NZAR 513; R v Sullivan & Lemay (1991) 63 CCC (3d) 97; Paton v British Pregnancy Advisory Service Trustees [1978] 2 All ER 987; Winnipeg Child & Family Services v G (1997) 152 DLR (4th) 193; re F (in utero) [1988] 2 All ER 193; Re an Unborn Child: [2003] 1 NZLR 115; Re Ulutau (1988) 4 FRNZ 512; Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436

Legislations

Health and Disability Commissioner Act 1994: s.52(2); s.54(1)(a), (c); s.57(1)

Code of Health and Disability Services Consumers Rights: Right 4, Right 5

Injury Prevention, Rehabilitation, and Compensation Act 2001: s.20, s.26(1)(b), s.27, s.32(1), s5, s.33(3), s.317, s.360

Accident Rehabilitation and Compensation Insurance Act 1992

Accident Insurance Act 1998

Authors and other references

Court-Ordered Caesarean Sections, J Manning (1999) 18 NZULR 546

Hon W F Birch Accident Compensation: A Fairer Scheme (Wellington, 1991)

MA McGregor Vennell & J Manning Accident Compensation [1992] NZ Recent Law Review 1

Representations

CJ Hodson QC and GE Phipps for the Appellant (instructed by Bartlett Partners, Wellington)

DB Collins QC for the Respondent (instructed by The Director of Proceedings, Health & Disability Commissionerís Office, Wellington)


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