Accident Compensation Corporation v Calver

[2019] NZHC 2667

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2018-485-951

[2019] NZHC 2667

IN THE MATTER OF

an application for leave to appeal to the Court of Appeal pursuant to s 163 of the Accident Compensation Act 2001

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Applicant

AND

ANGELA CHRISTINE CALVER as

executrix and trustee of the ESTATE OF DEANNA TREVARTHEN

Respondent

Hearing:

18 October 2019

Counsel:

P J Radich QC for Applicant

B H Woodhouse and T W R Lynskey for Respondent

Judgment:

18 October 2019

ORAL JUDGMENT OF MALLON J

(Leave to appeal)

[1]    Deanna Trevarthen contracted mesothelioma, a fatal cancer caused by exposure to asbestos, and subsequently died. Before she died, she sought ACC cover, which would have given her a range of entitlements.1 Her claim for cover was declined and ultimately the matter came before this Court in the form of questions of law for determination.

1      The cover was sought under the Accident Compensation Act 2001.

ACCIDENT COMPENSATION CORPORATION v CALVER [2019] NZHC 2667 [18 October 2019]

[2]    One the questions of law was whether “mesothelioma, not caused by work- related exposure to asbestos, amounts to a “personal injury” under s 26 of the Act”.2 I answered  that  question  “Yes”.3 In  answering that question I concluded that  Ms Trevarthen’s mesothelioma was a personal injury caused by an accident and this meant she was entitled to cover.4

[3]    ACC seeks leave to appeal my decision.5 It considers that all diseases, however caused, are excluded by the Act unless they are within s 26(2)(g). It considers the effect of my decision is that all diseases are included provided they are caused in one of the ways specified in s 20(2). It regards this as contrary to Parliament’s intention to exclude diseases under s 26(2) and potentially to deprive s 20(2)(g) of any function at all. It regards my conclusion as resting on an at least extended and arguably erroneous view of what was decided by the Supreme Court in Allenby v H.6

[4]    The extent and route by which diseases may be covered under the Accident Compensation Act 2001 is an important one. It is also not a straightforward one. Of this Act, as it stood in 2004 (then called the Injury Prevention, Rehabilitation, and Compensation Act 2001), it was said in Allenby: “Nor is this easy legislation to follow. It contains much cross-referencing, repetition, and circularity in expression”.7 Whether a disease such as mesothelioma, which develops from an external accidental cause, is covered by the 2001 Act had not been considered by the High Court before my decision. It has not been considered by the Court of Appeal before. The Supreme Court’s decision in Allenby, from which I drew support for my conclusion, concerned whether pregnancy following a failed sterilisation constituted a personal injury caused by medical misadventure so as to have cover under the Act. It did not therefore directly engage the situation that was before me. In these circumstances I accept the appeal raises a question of law capable of bona fide and serious argument.8

2      Calver v Accident Compensation Corporation [2019] NZHC 1581 at [5(a)].

3 At [6].

4      At [6] and [140].

5      Accident Compensation Act 2011, s 163.

6      Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 (SC).

7      At [7] per Elias CJ. See also at [68] per Blanchard J (with McGrath and William Young JJ agreeing).

8      Refer Wildbore v Accident Compensation Corporation HC Wellington CIV-2007-485-496, 9 April 2008 at [7] and [9] setting out the approach to when leave should be granted.

[5]    Mesothelioma is covered by ACC if it is work-related. The number of people in New Zealand who have or will contract mesothelioma outside of their work, as  Ms Trevarthen did, is likely to be few.9 However, I accept that my decision may have implications for ACC beyond Ms Trevarthen’s claim. Therefore, although I acknowledge it has been a long time already for Ms Trevarthen’s claim for cover to be finally determined, I am satisfied the appeal is of sufficient importance to outweigh the cost and delay of a further appeal.

[6]    I therefore consider that leave to appeal should be granted. I consider the question of law on which leave should be granted is that which I was asked as set out in [2] above. That this is the appropriate question is agreed by the parties.

[7]    If ultimately, following a final determination of this matter, there is any issue as to costs, the parties have leave to file brief submissions promptly following that final determination.

Mallon J

9      Calver v Accident Compensation Corporation, above n 2, at [1]. The “small but significant group” includes those who contract the disease from workplace exposure.