In Accident Compensation Corporation v AZ [2023] NZCA 617 the Court of Appeal has held that a person born with spina bifida (the claimant) could obtain cover for a treatment injury where:

• the claimant's spina bifida was not, but should have been, detected at the 20-week scan stage;
• the claimant's mother would have elected termination if the spina bifida been detected; and
• the misdiagnosis meant that the mother’s opportunity to elect termination was lost.

The Court noted that the purpose set out in s 3 Accident Compensation Act 2001 (ACA) “reinforces the appropriateness of erring on the side of allowing cover in marginal cases unless plainly excluded”.

Spina bifida, which occurs when the spine of a foetus does not develop properly in the early stages of pregnancy, results in a baby being born with an abnormal spine.

The Court found that spina bifida satisfied the definition of ‘personal injury’ in s 26(1)(b) ACA. The scan had been treatment of both the foetus and the mother, so the misdiagnosis was treatment of AZ. There was a causal link between the misdiagnosis and AZ’s personal injury.

“If the 20-week scan had been properly performed, AZ's mother would have had and exercised the opportunity to terminate the pregnancy of AZ. The misdiagnosis meant that this opportunity was lost, thus allowing the continued development of spina bifida in utero where it would otherwise have been halted by treatment, namely termination of the pregnancy. Expressed in conventional causation language, but for the failure to detect the spina bifida in utero, AZ would not have been born with spina bifida.”

AZ was therefore held to have cover under both s 20(2)(b) and s 20(2)(f) ACA.