ACC claim for pregnancy

A woman who fell pregnant after having her tubes tied has won the right to claim ACC compensation - based on the argument her pregnancy was a "personal injury".

According to the woman's lawyer, the decision could now be applied to other failed contraceptive measures - including broken condoms or falling pregnant while on the pill.

The judgment came after the woman - who cannot be identified - applied to ACC for compensation when she became pregnant after having a tubal ligation.

Her initial compensation claim was denied and the woman appealed, resulting in the district court judgment. ACC has since appealed to the High Court.

In his decision released last week, Wellington District Court judge John Cadenhead found the 31-year-old woman's pregnancy could be considered a "personal injury' and she had the right to lodge a claim with ACC.

Judge Cadenhead identified the "sole issue" as "whether pregnancy in this case could constitute an injury" for an ACC claim.

The woman's lawyer, Sam Hood, said it had yet to be decided whether compensation would be sought for the period of the pregnancy or the course of the child's life.

Mr Hood said his client made a decision in 2003 to limit her family to four children.

"With each of her first four pregnancies she prepared her body for conception by avoiding alcohol, not smoking, healthy eating and other measures designed to ensure her children were born happy and healthy. All four children were born without complication. After having four children, she and her partner believed they could not afford any more children so she received a sterilisation operation."

When the woman became pregnant she feared a fifth child would place "financial and social strain" on her family. But her greatest fear was for the baby's wellbeing.

Before she knew she was pregnant she had exposed the foetus to alcohol and second-hand smoke.

"The greatest fear was that in that period of time between falling pregnant, I had exposed my unborn foetus to a funeral process of a brother-in-law who died of meningitis ... unknowingly I had also indulged in other activities, alcohol, lived in close presence of smokers and partaken of foods that normally would havebeen off limits to my unborn child," the woman told her lawyer.

Mr Hood said that in March 2004 she gave birth to baby Mark by emergency caesarean-section.

"Mark was born with extreme eczema and a heart murmur for which he has required significant and ongoing medical care."

The birth, she argued, had placed a strain on the family, which had limited cash, and she had approached ACC for help with the additional costs of raising Mark.

"She believes that Mark was born with major problems caused by the fact that ... she hadn't taken the precautions she took with her previous children," Mr Hood said.

National Party ACC spokeswoman Katherine Rich said the Government would have to change the law to stop a flood of claims. "Every single person facing an unwanted pregnancy could apply. What next? Compensation for the pain of childbirth?

Mrs Rich said the situation created a terrible burden on the baby. "Imagine living your life knowing your parents fought for compensation because you were a 'personal injury'."

However, ACC expert and Victoria University law lecturer John Miller said it was "unlikely" the case would lead to a backlog of women applying for compensation because they had forgotten to take their contraception. The definition of personal injury by accident, he said, was very specific.

Fertility Associates director Dr Richard Fisher, who specialises in helping childless couples, said similar cases were being argued.

"My patients would think you take pregnancy when it comes and be grateful for it."