Government & Legislation, Oddstuff

No ACC cover for mother of injured baby

No quite related to any of the other topics I normally cover, but still interesting:

the HC in C v ACC (24 March 2011, CIV 2010-40406195) held that the mother of a child born with an injury requiring surgery (and which was not discovered by the radiologists in week 20 of the pregnancy) was not entitled to claim for treatment injury. 

Confirming a previous CA decision, the Court held that a pregnancy, even if unwanted, is not a physical injury in terms of the Act.  Without any injuries suffered by the mother, the continuation of a pregnancy in itself is not an injury under the ACC legislation (s32/33 Accident Compensation Act 2001).

The HC also held that the injury of the child did not constitute an injury to the mother, thereby distinguishing it from another CA case,  (Harrild v Director of Proceedings, 2003, 3 NZLR 289) where the death of an unborn child in utero was held to be a physical injury for the mother.  The Court held that according to the born-alive rule a fetus has no rights prior to birth.

It follows that, when the child dies in utero, it has no rights under ACC, but that the death constitutes an injury because the fetus is part of the person of the mother, hence allowing the mother to claim. In the case, however, the child was born alive, therefore has own rights in regards to the injuries suffered and the mother can not claim under ACC.


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