Will ACC now cover disease in certain circumstances? Watch this space...

Accident Compensation Corporation v Angela Christine Calver as executrix and trustee of the estate of Deanna Trevarthen [2019] NZHC 2667

 

This was a successful application by the Accident Compensation Corporation (“ACC”) for leave to appeal a judgment of Mallon J[1].  

 

The background is that Deanna Trevarthen contracted mesothelioma, a fatal cancer caused by asbestos exposure.  Prior to her death, she sought ACC cover, which would have given her various entitlements.  The claim was declined by ACC.  The judgment that ACC was seeking leave to appeal was a decision of Mallon J which determined various questions of law.

 

One of 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 [Accident Compensation] Act.”  Mallon J had answered that question “yes”, concluding that Ms Trevarthen’s mesothelioma was a personal injury caused by an accident, and she was therefore entitled to cover.

 

ACC sought leave to appeal that judgment.  Its position was that all diseases, however caused, are excluded by the Act unless they are within s 26(2)(g).

 

Mallon J acknowledged that the extent and route by which diseases may be covered under the Act is an important issue, and not a straightforward one.  The issue of whether a disease which develops from an external accidental cause is covered by the 2001 Act had not been considered by the High Court prior to Mallon J’s earlier decision.  Nor had it previously been considered by the Court of Appeal.  The closest that the Supreme Court had come to considering this issue was the decision of Allenby v H[2], from which Mallon J drew support for his conclusions.  That case concerned whether pregnancy following a failed sterilisation constituted a personal injury caused by medical misadventure so as to have cover under the Act.  It was therefore not directly engaging the situation which was before Mallon J.

 

Given this background, Mallon J accepted that the appeal raised a question of law capable of bona fide and serious argument.  He took into account that his decision may have implications for ACC beyond Ms Trevarthen’s claim.  He was satisfied that the appeal was of sufficient importance to outweigh the cost and delay of a further appeal, and granted leave to appeal on the same question of law that he had considered.

[1] Calver v Accident Compensation Corporation [2019] NZHC 1581

[2] Allenby v H [2012] NZSC 33

Copyright Steve Keall, all rights reserved, 2019.

Written by Steve Keall & Katy Barker