AZ was born with spina bifida and had claimed for a treatment injury. It was acknowledged that her mother’s 20-week pregnancy scan had been misread. Evidence was that her mother would have terminated the pregnancy if the scan had correctly diagnosed AZ’s spina bifida. The mother had been granted cover for the continuation of the pregnancy after 20 weeks.

ACC declined AZ’s claim for cover for a treatment injury. That decision was upheld by the District Court, which found that misreading the scan had not caused AZ’s spina bifida.

The High Court has reversed the decision. The Judge found that AZ did have cover because the conditions that AZ was born with were a personal injury caused by treatment failure. The treatment (the scan) was given to both the mother and the foetus, so the failure (the misreading) applied to both. The consequence of the failure was the birth of AZ with spina bifida.

The Court made a declaration that a person born with spina bifida had cover where:

• the condition was not detected but should have been;
• the mother would have terminated her pregnancy if the condition had been detected; and
• the misdiagnosis meant the mother had lost the opportunity to choose to terminate.

The Judge also commented that availability of more generous entitlements under the ACC system than under the social welfare system was not a reason for declining cover, saying “that discrimination can only be addressed through legislative reform” (at [126]).