
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. 