Pregnancy can be a “personal injury”, says Supreme Court
By Craig Sisterson

A WOMAN who becomes pregnant following a failed sterilisation has suffered personal injury caused by medical misadventure, for which she will have cover under the accident compensation scheme, the Supreme Court has held in Allenby v H & Ors [2012] NZSC 33 (9 May 2012), overturning an earlier decision of the Court of Appeal in a similar case.

“I do not consider there to be any convincing reason based on the statute’s text or purpose for treating pregnancy as being outside the scope of ‘personal injury’ as defined in the Act,” said Chief Justice Dame Sian Elias at [19]. “I consider that impregnation following a failed sterilisation is a physical impact to the person of the woman being treated and is within the meaning of personal injury caused by medical misadventure.”

In January 2004, H had an operation which was intended to render her sterile. The operation failed to achieve that purpose; a clip had not been correctly attached to one of her fallopian tubes. She became pregnant, and in early 2005, gave birth to a child by caesarean section. She brought proceedings in the High Court claiming damages from the surgeon and the District Health Board which employed him. The issue was whether she could sue for damages, or was covered for medical misadventure under the provisions of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (now the Accident Compensation Act 2001) (2001 Act), barring her common law claim.

Because in a similar case, Accident Compensation Corporation v D [2008] NZCA 576, a majority of the Court of Appeal had determined that cover did not exist in such circumstances (on the basis that pregnancy was not a “personal injury” under the legislation because it was not a “physical injury” – those phrases suggesting a need for harm or damage), the High Court made an order removing the question of whether pregnancy caused by medical misadventure could be covered by the accident compensation scheme directly to the Court of Appeal. The Court of Appeal delivered a brief judgment following its earlier decision (Allenby v H [2011] NZCA 251) and leave to appeal was granted to the Supreme Court to fully consider the issue.

Brave new world

2012: the year specialist family law practitioners are facing a fundamentally altered legal landscape.

Multiple intersecting reform processes are advancing rapidly. Current consultation on reform is so frequent and short notice that many comment on its “revolving door in perpetual spinning motion” quality.

The tripartite axis of reform (currently) is the Family Court Review, the centralisation of the Auckland regional courts, and fixed fees for legal aid (and associated reforms).

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There are evil people online. They bully, they defame, they harass, they intimidate, they denigrate, they post naked pictures of their ex on Facebook. Their innocent victims must be protected. As the Law Commission has amply demonstrated in it issues paper, The News Media meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (NZLC IP 27, December 2011), these harms are real.

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“We are the Legal Ombudsman for England and Wales, set up by the Office for Legal Complaints (our Board) under the Legal Services Act 2007. Parliament wanted to simplify the system and make sure consumers had access to an independent expert to resolve complaints.”

Any New Zealand lawyer and many complainants caught up in the Byzantine labyrinth of the complaints system would endorse any system which says they want to simplify the system.