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Judgment: J v Accident Compensation Corporation



9 OCTOBER 2017



[2017] NZCA 441


This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

1. The Court of Appeal has today dismissed an appeal brought by Ms J against a High Court decision in which she was denied weekly loss of earnings compensation under the Accident Compensation Act 2001 (the Act).

2. Ms J fell pregnant following a failed sterilisation procedure. She has previously been granted cover for personal injury under the Act for the duration of her pregnancy and the period of physical recovery that followed childbirth.[1] She then sought weekly loss of earnings compensation under the Act for the period that she was unable to work because of the need to care for her child.

3. The majority, Cooper and Asher JJ, found that while the pregnancy was an injury as defined by the Act, Ms J was not entitled to the weekly compensation sought. The Act is concerned with the physical and mental consequences of injury. It is not concerned with obligations that may arise to look after a child after there has been a complete physical and mental recovery from pregnancy and childbirth. Once the child was born Ms J was not prevented from working by her personal injury. She had recovered. Rather, she was prevented from working by the need to care for the child. Interpreted as a whole, the Act only provides weekly compensation insofar as the claimant is still experiencing the physical and mental effects of his or her injury.

4. Kós P disagreed with the majority, and found that Ms J was entitled to weekly loss of earnings compensation for the period that she was unable to work because of the need to care for her child.

5. Unlike the majority, Kós P took the view that the Act provides entitlements so long as a claimant is incapacitated as a consequence of his or her personal injury. A claimant may be incapacitated as a consequence of his or her injury beyond the period for which he or she is experiencing the physical and mental effects of that injury. Ms J’s child was the natural and inevitable consequence of the personal injury of pregnancy. She was entitled to weekly compensation for incapacity for so long as the need to care for the child precluded her return to employment..


6. A High Court order prohibiting the publication of the name, address, occupation or identifying particulars of the appellant remains in force.


[1] The Supreme Court found that pregnancy following a failed sterilisation constitutes personal injury for the purposes of the Act in Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425. Ms J was granted cover for her pregnancy following the release of that decision.


Scoop copy of judgment: JvACC.pdf

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