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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
THE OTHERED WOMAN
A feminist analysis of the ACC Scheme to identify worldviews that drive decision-making regarding women’s bodies
Nikita Raman
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2023
Acknowledgements
First and foremost, thank you to Simon Connell, not only for your invaluable guidance and expertise, but also your immeasurable kindness, patience, and encouragement. I am incredibly grateful to have been supervised by you.
To my darling friends, Jamie, Shruthi, Eve, Gabriel, and Shani, thank you for always believing in me, even when I didn’t, and for all the laughter we have shared. You have all made this journey infinitely brighter.
To Alex, for your unwavering support and the endless joy you bring to my life. I could not have done this without you.
To my adoring parents, thank you both for everything, I will never be able to express how much I appreciate all your love, hard work, and support. I owe all of this, and more to you. And thank you to my sister, Sacha, for loving me when I’m at my best and at my worst.
Lastly, I would not be here without the love and support of my late Grandfather, thank you for picking me up every day after school and making sure I got an education. I am eternally grateful for the influence you had on my life.
Introduction
The vision of the Accident Compensation Scheme (ACC scheme) is to provide comprehensive compensation for personal injuries suffered on a no-fault basis for the benefit of every New Zealander.1 Generally, ACC statutory material appears to be gender-neutral at a surface level, with no express provisions for different cover and entitlements for women compared to men.2 However, ACC’s internal analysis recently revealed that “women are less likely to make ACC claims, more likely to be declined when they do, and they receive half the compensation men receive.”3 This raises the question: what is the explanation for these sexist outcomes?
To answer this question, I pose two underlying competing worldviews, the traditional worldview and the progressive worldview, as drivers behind gender-biased outcomes and outcomes of gender equality. I argue that outcomes of decisions regarding women’s bodies, concerning the availability of cover under the scheme, depend on which worldview lawmakers align with.
The focus areas of this dissertation include pregnancy as a personal injury and cover for birth injuries. Both issues concern the availability of cover for injuries to women’s bodies under the scheme thus, will usefully illustrate whether worldviews have driven sexist outcomes in these contexts. A feminist framework will be adopted to reveal gender bias and to illuminate the features of these worldviews in the focus areas.
This dissertation is structured as follows:
Chapter I introduces a brief legislative history of the ACC scheme and argues the ACC scheme is gender biased against women.
Chapter II establishes the competing traditional and progressive worldviews.
1 Accident Compensation Corporation “Our Vision” <www.acc.co.nz>.
2 Exceptions to this include the recently reformed cover for maternal birth injuries under section 25(1)(f) of the Accident Compensation Act 2001 and specific cover for pregnancy consequent to sexual violation under the Accident Compensation Act 1974, s 105B(1).
3 Emma Powell “ACC's delivery to priority populations: Part 1 – Women” (22 April 2021) GOV-010264 at 1-7 (Obtained under Official Information Act 1982 Request to ACC); see also Anusha Bradley “ACC biased against women, Māori and Pasifika - agency's own analysis shows” (21 June 2021) RNZ < https://www.rnz.co.nz/>.
Chapter III provides a feminist framework drawn from critical feminist legal theory.
Chapter IV applies this feminist framework to the focus areas of pregnancy as personal injury and providing cover for birth injuries to identify the features of both worldviews.
Chapter V sets out the utility of the feminist approach and the value in identifying the competing worldviews underlying decisions about women’s bodies in the ACC scheme. It also recommends changes to the focus areas to reach alignment with the progressive worldview, if the progressive worldview is considered desirable.
I. The Accident Compensation Scheme and Underlying Gender Bias
This Chapter provides a brief background to the ACC scheme and establishes that ACC outcomes are gender biased against women.
A. Background to Accident Compensation Scheme
The ACC scheme was introduced on the recommendation of the 1967 Royal Commission on “Compensation for Personal Injury in New Zealand.”4 The resulting report, now known as the ‘Woodhouse Report,’ named after its chairman, Sir Owen Woodhouse, is seen as the foundation of the ACC scheme.
Prior to the ACC scheme, the primary method of compensation for personal injury was through a common law negligence claim.5 The Woodhouse Report identified inconsistency in the overall distribution of the burden of injury under the current compensation methods and widely criticised the common law system of receiving compensation, describing the process as a “form of lottery.”6 These issues, coupled with many others highlighted in the Report,7 led to the suggestion of replacing the existing compensation mechanisms with a new comprehensive, no- fault system of accident prevention, rehabilitation, and compensation, 8 guided by the principles of “community responsibility, comprehensive entitlements, rehabilitation and administrative efficiency.”9 On this recommendation, the first Accident Compensation Act was enacted by Parliament in 1972 (1972 Act) and commenced operation on 1 April 1974 (1974 Act).10 Cover was provided for “personal injury by accident”, which was non-exhaustively defined in the Act.11
4 Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand Compensation for personal injury in New Zealand; Report of the Royal Commission of Inquiry (Wellington, 1967) [Woodhouse Report].
5 Other methods of compensation for personal injury included workers’ compensation under Workers’ Compensation Act 1956 and criminal injuries compensation under Criminal Injuries Compensation Act 1963. 6 Woodhouse Report, above n 4, at 1.
7 At 1; Other criticisms of the existing methods of compensation include the meagre compensation available under the Workers' Compensation Act 1963 and the difficulty to reach eligibility to receive compensation under The Social Security Act 1964.
8 Woodhouse Report, above n 4, at 108-113.
9 At 39-41.
10 Accident Compensation Act 1972.
11 Accident Compensation Act 1972, s 2(1). The Act covered earners suffering personal injury by accident, and all New Zealander’s suffering personal injury by motor vehicle accidents.
In 1992, concerns that the non-exhaustive definition of “personal injury by accident” had led to “an unsustainable increase in the number and cost of claims”12 resulted in a narrowing of the scheme. Consequently, the Accident Rehabilitation and Compensation Insurance Act 1992 (1992 Act) was enacted. The reforms separated the cause, such as accident, from the injury and made personal injury a prerequisite for cover, provided it was caused by certain conditions.13 An exhaustive and more restrictive definition of “accident” was also included.14
This scheme generally remains in place today. Under the Accident Compensation Act 2001 (ACA), a person who has sustained a “personal injury”15 arising due to one of the circumstances specified in section 20(2), including by accident, is entitled to compensation based on the available cover provided under the Act.16 The right to sue in tort in relation to that injury for compensation is barred where cover under ACC is provided.17
B. Gender Bias underlying in the Accident Compensation Scheme
This part broadly sets out that the ACC scheme contains gender bias. “Gender bias is behaviour that shows favouritism toward one gender over another,” and often is the favouring of men over women.18 This part establishes that gender bias was present in the scheme's foundation, that gender bias can exist in the interpretation of the scheme, and that the scheme produces gender-biased outcomes.
The history of law regarding women’s bodies is sexist.19 Similar to all other laws, the origins of ACC law were authored by men, while women were excluded from such law-making
12 Ken Oliphant “Beyond Misadventure: Compensation for Medical Injuries in New Zealand” (2007) 15 Med Law Review 357 at 359.
13 Accident Rehabilitation and Compensation Insurance Act 1992 s 8. Cover is provided for “personal injury”
caused by “an accident to the person,” certain “gradual process, disease or infection” arising in employment, “medical misadventure,” or as a “consequence of treatment for personal injury.” 14 Accident Rehabilitation and Compensation Insurance Act 1992, s 3(a).
15 Accident Compensation Act 2001, s 26(1).
16 Accident Compensation Act 2001, s 69; Entitlements include compensation for personal and treatment injuries on either a weekly, monthly or lump sum basis and also include compensation for lost earnings, rehabilitation and funeral grants.
17 Accident Compensation Act 2001, s 317.
18 Jennifer Rothchild “Gender Bias” in George Ritzer The Blackwell Encyclopaedia of Sociology (Blackwell Publishing, Oxford, 2007) 1843 at 1843; see also; Margaret Andersen “The Social Construction of Gender” in Thinking about Women (8th ed, Pearson, Boston, 2009) 20 at 21.
19 For a detailed explanation of the treatment of women’s bodies in New Zealand overtime see Yanshu Huang “Ambivalent Sexism and Reproductive Autonomy: An Examination of Attitudes in New Zealand.” (PHD thesis,
positions. Take, for example, the bedrock of the scheme, the Woodhouse Report. While revolutionary with its bold ideas and guiding principles, the Woodhouse Report, written by men, 20 carries a masculine bias. When outlining who the Report applies to, it considers “the women in the population who, as housewives, make it possible for the productive work to be done.”21 The necessary implication of this sentence is the stereotype of women as housewives and men as breadwinners. Women are confined to the role of homemaker, and are not seen as doing productive work, rather, they enable men to do the productive work. Reliance on gender roles to differentiate treatment is seen a factor contributing to gender bias.22 Thus, despite the Woodhouse Report’s shining principles, it lacks the principle of gender equality. This reflects gender bias in the foundation of the scheme. 23
“Law is influenced by the experiences and opinions of those who create and interpret it.”24 As judges are more likely to be male, there is a risk of gender bias in interpreting ACC law. Male judges outnumber female judges in Aotearoa New Zealand, in total and at each court except for the Employment and Family Court and an even split in the Supreme Court.25 A judiciary dominated by men is more likely to adopt masculine reasoning and ideals in the law that serve to benefit men,26 thus posing a risk of gender-biased interpretations in ACC law.
University of Auckland 2019); Christine Dann, Up from Under Women and Liberation in New Zealand 1970- 1985 (Bridget Williams Books, Wellington, 2015); Sonia Sly “Rights and Ownership over the Female Body” (14 October 2018) RNZ <www.rnz.co.nz/>.
20 Woodhouse Report, above n 4; the Woodhouse Report was written by Arthur Owen Woodhouse, Herbert Leslie Bockett, and Geoffrey Arnold Parsons.
21 At 7.
22 Naomi Ellemers, “Gender Stereotypes” (2018) 69 Annual Review of Psychology 275 at 297.
23 For a further example of gender bias in the Woodhouse Report see paragraph 302 of the Report which states if a husband dies due to personal injury his widow should receive compensation reflective of the husband’s lost earnings until she remarries. This implies women need compensation while unconnected to men reinforcing the male breadwinner, female housemaker stereotype and imposes perverse incentives for women to either marry a man capable of providing for her or avoid remarriage lest she remarry a man who earns less than the compensation provided, leaving her financial worse off.
24 Helen Winkelmann “What Right Do We Have? Securing Judicial Legitimacy in Changing Times” (Dame
Silvia Cartwright Address, 17 October 2019); see also Regina Graycar “The Gender of Judgments: Some Reflections on Bias” (1998) 32 U Brit Colum L Rev 1 at 14.
25 Belinda Feek, “Chief Justice's Report; Behind the bench - a revealing look at NZ's judges” (4 March 2022) New Zealand Herald < www.nzherald.co.nz/>.
26 Research suggests gender does influence judicial outcomes, see Jennifer Peresie “Female Judges Matter:
Gender and Collegial Decision-making in the Federal Appellate Courts” [2005] YaleLawJl 34; (2005) 114 YLJ 1759; Shane Gleason, Jennifer Jones, Jessica McBean “The Role of Gender Norms in Judicial Decision-Making at the U.S. Supreme Court: The Case of Male and Female Justices” (2019) 47(3) Sage Journals 494.
Internal analysis of the ACC scheme revealed gender-biased outcomes, with women making fewer claims, having more claims declined and receiving half as much compensation as men.27 This research assessed claims data between 2015 and 2020 and identified that over the five years, it had become even harder for women, especially Māori and Pasifika women, to have their ACC claims accepted.28 The rate of cover declinations had increased from 2.2% to 2.6%, while for men, it only increased from 1.9% to 2.1%. Even if women received cover, they were generally entitled to just over half the compensation rate that men received.29 Despite women accessing the healthcare system more frequently than men, men filed 4% more claims than women.30 The briefing also noted that the definition of “injury” predominantly captures the types of injuries suffered by men compared to injuries suffered by women.31
What is the explanation for these discrepancies in the ACC scheme between genders? It is gender bias, as ACC’s analysis shows.32 Based on these findings, it appears gender bias permeates the scheme at two levels. Firstly, it seems the ACC criteria for cover and entitlements is biased against women in the sense that the scheme is more likely to cover accidents and injuries that happen to men. Secondly, it seems that when making decisions about cover and entitlements, ACC decision-makers are biased against women in interpreting the legislation and exercising discretion. While aspects of ACC law have changed since the compensation scheme's formation, it seems its masculine roots have stayed firmly embedded in the structure of the law, resulting in gender-biased outcomes under the scheme.
27 Powell “ACC's delivery to priority populations: Part 1 – Women” above n 3, at 1-7.
28Emma Powell “ACC's delivery to priority populations: Part 2 – Māori” (6 May 2021) GOV-010263 (Obtained under Official Information Act 1982 Request to ACC); Emma Powell “ACC's delivery to priority populations: Part 2 – Pāsifika peoples” (21 May 2021) GOV-010518 (Obtained under Official Information Act 1982 Request to ACC).
29 Powell “ACC's delivery to priority populations: Part 1 – Women” above n 3, at 2-5.
30 At 5.
31At 3. See also Dawn Duncan “Beyond Accident: A Model for the Compensation of Work Related Harm in New Zealand” (PHD thesis, Victoria University of Wellington 2019) at 98-109 and 115-117, where she suggests the types of injuries women are more likely to experience in the workplace are less likely to be covered, compared to injuries experienced by men in the workplace. This is because injuries that arise in ‘caring professions’ that are female dominated such as nursing or teaching are unrecognised as coverable, while injuries that arise in male dominated industries like trade work are covered.
32 Powell “ACC’s delivery to priority populations: Part 1 – Women” above n 3, at 1-7.
II. Worldviews underlying the Accident Compensation Scheme
A. An Overview on Worldviews
The Oxford English Dictionary defines a worldview as: 33
A largely unconscious but generally coherent set of presuppositions and beliefs... which shape how we make sense of the world (and influence) how we interpret our role in society, how we deal with social issues, and what we regard as truth.
In a pluralistic world, several worldviews exist throughout society.34 As such, many research fields have used worldview analysis to explain or predict decision-making.35 Worldviews, however, have never been used to animate the debate that occurs in boundary cases and legislative reform regarding women’s bodies in the ACC scheme. This dissertation proposes the traditional and progressive worldview, fashioned for the ACC context, as a mechanism to explain gender biased outcomes concerning decisions about women’s bodies under the ACC scheme.
Not only are worldviews prevalent in society, they also operate in law. 36 The contextualist critique of textualism as a method of legal interpretation illustrates when worldviews can be seen to operate in law. Stanley Fish writes:37
33 Oxford Dictionary (online at 1 September 2023) ‘worldview.’
34 James Sire “Intelligent People Who Clash by Day: Worldviews as a Tool for Analysis” in Naming the Elephant: Worldview as a Concept (2nd ed, InterVarsity Press, Illinois, 2015) 158 at 158.
35 For worldview analysis in sustainability research see Annick Hedlund-de Witt “Rethinking Sustainable Development: Considering How Different Worldviews Envision “Development” and “Quality of Life”” (2014) 6(11) Sustainability 8310. For worldview analysis in political research see Girts Dimdins, Henry Montgomery and Maria Sandgren “Worldviews and Values as Bases for Political Orientations” (2023) 36(1) IRSP 1. For worldview analysis in indigenous research see Sione Tu’itahi “Waiora: the importance
of Indigenous worldviews and spirituality to inspire and inform Planetary Health Promotion in the Anthropocene” (2021) 28(1) Global Health Promotion 73.
36 For example, see Jeffrey Tuomala “Chinese and Western Worldviews: Implications for Law, Policy, and War” (2008) 6 Regent Journal of International Law 92; Nopera Dennis-McCarthy “Reconciliation and self- determination: incorporating indigenous worldviews on the environment into non-indigenous legal systems” (2019) 6 PILJNZ 163; James Davids “The Role of Worldview in the Judicial Decisions of Justice Paul Stevens” (2017) 11 Liberty University Law Review 723.
37 Stanley Fish Is There a Text in this Class? (Harvard UP, Cambridge, Mass., 1980) at 284.
A statute is never not read in light of some purpose. A set of interpretive assumptions is always in force. A sentence that seems to need no interpretation is already the product of one.
When text appears to have a plain meaning, Fish argues that is so because of the context already in place in the reader’s mind.38 Fish emphasises that deep assumptions and positions exist in the reader's mind, leading the reader to prefer particular interpretations and see them as the most obvious meaning.39 As such, “whenever there is a dispute about the plain meaning of a contract, at some level the dispute is always between two (or more) visions of what life is, or should be like.”40
While Fish does not use the term “worldviews,” it appears he is a proponent of the idea that, at some level, interpretive disputes are a competition between differing worldviews or visions, as he says. In ACC law, issues of interpretation often arise in boundary cases and recently reformed areas of law. This dissertation will aim to identify the worldviews present in the interpretive process of determining boundary cases of whether pregnancy is a personal injury under the scheme and the recent amendments to cover birth injuries.
This dissertation aims to locate conscious reliance on worldviews to reach conclusions and unconscious reliance – where lawmaker's seemingly objective statements, such as “using a plain meaning” or an “ordinary and natural meaning,”41 are premised on underlying worldviews.
Worldview analysis in the context of the ACC scheme is a valuable tool to explain which assumptions and beliefs, held when making decisions about women’s bodies, lead to gender- biased outcomes and outcomes of gender equality. While worldview analysis does not solve
38 Stanley Fish “The Law Wishes to Have a Formal Existence” in Austin Sarart and Thomas R. Kearns (eds) The Fate of Law (University of Michigan Press, USA, 1991) 159 at 165.
39 at 175.
40 at 175.
41 This statement is made by the majority in ACC v D [2008] NZCA 567 at [55]. The worldviews underpinning this statement will be discussed in Chapter IV.
the problem of gendered outcomes, “it brings the larger picture into focus, illuminating the heart of the matter.”42 Namely, the drivers of gender biased outcomes in ACC law.
B. Setting out the Traditional and Progressive Worldview
This dissertation proposes its own framework of worldviews, as the “Traditional Worldview” and the “Progressive Worldview.” This articulation of the worldviews has been developed specifically to address the treatment of women’s bodies under the ACC scheme. They have been formulated through engaging with the literature in the areas of pregnancy as personal injury and cover for birth injuries, and identifying common features that arose from a feminist analysis of both contexts.
Throughout this dissertation, I will demonstrate how features of these worldviews manifest in decisions regarding women’s bodies in the ACC scheme either through the ideas contained in express statements or as the most plausible explanation for the driving force behind statements absent justification.
It is important to note this dissertation does not seek to essentialise all worldviews into the two worldviews proposed. Nor does it suggest the operation of all worldviews are binary, with an equal opposite. Many other worldviews exist, and not all are in competition. 43 For example, the Te Ao Māori worldview exists, focusing on interconnections between nature and people grounded in Tikanga customary values and mātauranga knowledge.44 The intersection between Tikanga, feminism and ACC law is ripe for analysis, but lies outside this dissertation's scope.
These worldviews have been selected as they are the most evident in driving decision making in the analysed literature. This dissertation also does not suggest that a person can only reason from a single worldview; rather, as discussed in Chapter V, the operation of worldviews are dynamic and more than one can be reasoned from.
42Sire, above n 34, at 159.
43 For example, see Rebekah Mifsud and Gordon Sammut “Worldviews and the role of social values that underlie them” (2023) 18(7) PLoS One p.e0288451 for the use of five different non-competing worldviews. 44Māori Marsden and T.A. Henare “Kaitiakitanga : a definitive introduction to the holistic world view of the Māori” in The woven universe: selected writings of Rev Maori Mārsden ( Ministry for the Environment,
Wellington, 1992) 54 at 69. See also, Daniel Hikuroa “Mātauranga Māori—the ūkaipō of knowledge in New Zealand” (2016) 47(1) JRSNZ 5; Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 21 WLR 1.
The feminist framework revealed four features underpinning the traditional worldview towards the treatment of women’s bodies under the ACC scheme:
(a) T erms defined and interpreted through a masculine lens
The traditional worldview operates from a masculine point of reference. Thus, statutory terms such as ‘accident’ and ‘injury’ are defined according to the default male body and interpreted through masculine reasoning. Injuries and accidents that commonly occur to male bodies are recognised, while harms unique to women are excluded as the traditional worldview, due to its inherent masculinity, cannot comprehend a woman’s experience.
(b) N arrow conceptions of harm
Under masculine reasoning, harm is measured against the default male body. Thus, it predominantly captures the physical harms that occur to men.45 Focusing on physical injury excludes intangible harms, such as breaches of reproductive autonomy and bodily integrity, which predominantly occur to women.46 Further, harms unique to women are unrecognised as injuries or adverse consequences. Such conceptions of harm are rooted in traditional family values, which view parenthood, pregnancy and childbirth as inherently positive.47
(c) N atural process reasoning
Under the traditional worldview, ‘natural’ events and processes are mutually exclusive with the kinds of events and injuries that come under the accident compensation scheme. This is to say that harms sustained during natural biological processes are unrecognised as injuries and are uncompensated under the scheme. Underpinning this argument is the justification that, as accidents and injuries are seen as unnatural events, if natural processes are seen to carry harm, the deemed unnaturalness of injuries would diminish the naturalness and integrity of the natural process. Traditional family values view pregnancy and childbirth as inherently positive and fruitful for the continuance of society.48 Natural process reasoning builds on this idea to argue
45 See Duncan, above n 31, at 98-109 and 115-117 as an illustrative example of statutory terms in ACC in the context of workplace injuries that are defined in a way that better captures male injuries than female injuries. 46 See Yanshu Huang, above n 19, at 152.
47 See Nicolette Priaulx “Joy to the World! A Healthy Child is Born! Reconceptualizing ‘Harm’ in Wrongful Conception” (2004) 13(1) Soc. & Legal Stud. 5 at 11.
48 At 11-12.
that by virtue of occurring naturally and leading to the reproduction of society, pregnancy and childbirth are net positive outcomes that cannot be viewed as injuries.
(d) S trong conception of distinct gender roles
The traditional worldview has a robust patriarchal foundation and operates from traditional conceptions of men as breadwinners and women as homemakers, child-bearers and carers.49 These roles are seen as individual with little to no cross-over between the sexes. As child- bearing is seen as women’s natural role, women are expected to endure the harms that arise in the role. As such, men and women receive different treatment under the scheme based on their distinct gender roles.
In opposition to the traditional worldview is the progressive worldview, which also has four features as revealed by the feminist framework.
(a) O perating from an inclusive framework
The progressive worldview operates from an inclusive frame of reference that is able to recognise harms sustained to all genders. This worldview does not default to male-defined terms; instead, it uses definitions that do not result in differential treatment based on gender.
(b) B road conceptions of harm
Operating from an inclusive perspective, the progressive worldview is not bound to male- defined harms; rather, it has a broader conception of harm extending to intangible harms to reproductive autonomy. Reproductive autonomy is an individual’s right to make decisions about their health, contraception, pregnancy, and child-rearing, and extends to the “ability to decide, when, if ever, to have children.”50 Under the progressive worldview, reproductive choices are respected, with breaches recognised. Further, harms that women suffer, as
49 For further research on gender roles see Margaret Andersen “The Social Construction of Gender” in Thinking about Women (8th ed, Pearson, Boston, 2009) 20.
50 Nicollet Priaulx “Reproductive Autonomy” in Peter Cane and Joanne Conaghan (eds) The New Oxford
Companion to Law (Oxford University Press, Oxford, 2008) at 170.
women,51 are specifically considered and recognised as injuries rather than being excluded for uniquely occurring to women.
(c) I rrelevance of natural process reasoning
Natural process reasoning is rejected as a basis of decision-making under the progressive worldview, as harm is recognised to coexist during natural processes. Such acknowledgement is not seen to erode the integrity of the natural process, nor does it diminish or discount the harm by virtue of it occurring during a natural process.
(d) E liminating the use of gender roles
The progressive worldview does not rely on gender roles to justify decision making. Under this worldview, women are not siloed into the role of homemakers and child-bearers. Rather, they are seen as autonomous. Both men and women have a choice as to their role in society, thus, child-bearing, child-rearing, and caring are seen as a matter of choice rather than the natural role of women. Further, men and women do not receive differential treatment based on these gender roles.
Conclusion
Having set out the features of both worldviews, this dissertation will show how they underlie disputes regarding ACC coverage for women’s experiences in the contexts of pregnancy as personal injury and cover for birth injuries as revealed through a feminist lens.
51 Priaulx “Joy to the World! A Healthy Child is Born! Reconceptualizing ‘Harm’ in Wrongful Conception,” above n 47, at 10.
III. A Feminist Framework for Analysing ACC Law
This chapter will explore three feminist legal critiques that form my general feminist framework: (1) the law takes a “default male” approach and assumes parties are men;52 (2) the law holds men as the norm and “woman as other;”53 and (3) I will ask the “woman question” to identify whether women have been considered in legal reasoning.54
To preface this chapter, the feminist approach used in this dissertation is not the feminist approach, but a feminist approach. 55 The approach used here draws from critical feminist legal theory. However, other strands of feminism exist, such as radical feminism.56 Radical feminism focuses on society and law’s patriarchal foundations and seeks to de-establish entire systems rather than reform – a valuable framework, but one outside this dissertation’s focus.57
A. Critical Feminist Legal Theory
Critical feminist legal theory (CFLT) is a subset of critical legal theory (CLT).58 CLT challenges the traditional assumption that law is a neutral instrument that can be applied objectively. Instead, it argues that law is inherently political, and is a tool of power and social control.59 CFLT applies this general argument to matters of gender, challenging the assumption that the law is gender-neutral and exposes gender bias within the law.60 CFLT argues that the patriarchy’s pervasive influence shapes the law and aims to identify where the law assumes a
52 This term comes from Caroline Criado Perez Invisible Women: Exposing data bias in a world designed for men (Chatto & Windus, London, 2019).
53 Simone de Beauvoir The Second Sex (Landsborough, London 1960).
54 Katharine T Bartlett “Feminist Legal Methods” (1990) Harv L Rev 829 at 837.
55 Hilaire Barnett Introduction to Feminist Jurisprudence (Cavendish Publishing Ltd, London, 1998) at 8. 56 For other schools of feminist thought see, Barnett, above n 55; Robin West “Introduction to the Research Handbook on Feminist Jurisprudence” in Robin West and Cynthia G Bowman (eds) Research Handbook on Feminist Jurisprudence (Edward Elgar Publishing Ltd, Cheltenham, United Kingdom, 2019) 1.
57 Barnett, above n 55 at 163-164; see also Catherine A MacKinnon “Feminism, Marxism, Method, and the State: An Agenda for Theory” (1982) 7 Signs 515 at 541; Judith A. Baer Our Lives Before the Law: Constructing a Feminist Jurisprudence (Princeton University Press, Princeton, 1999) at 27.
58 Deborah L Rhode “Feminist Critical Theories” (1990) 42 Stan L Rev 617 at 632.
59 Emilios Christodoulidis “Critical theory and the law: reflections on origins, trajectories and conjunctures” in Emilios Christodoulidis, Ruth Dukes, and Marco Goldoni (eds) Research handbook on Critical Legal theory (Edward Elgar Publishing, Northampton, 2019) 2 at 23; Rosemary Hunter “Critical legal feminisms” in Emilios Christodoulidis, Ruth Dukes, and Marco Goldoni (eds) Research handbook on Critical Legal theory (Edward Elgar Publishing, Northampton, 2019) 45 Barnett, above n 55 at 189.
60 Rhode, above n 58, at 619; Hunter, above n 59, at 46.
male perspective that perpetuates male dominance and female subordination under the guise of objectivity.61
The “default male” critique exposes decisions or ideas premised on the male body, masculine experiences and the use of masculine reasoning and value systems.62 The law presents itself as objective and gender-neutral, all the while holding assumptions rooted in the male perspective. While the gloss of neutrality makes these assumptions difficult to challenge, a CFLT lens on ACC law would seek to expose and displace its “default male” assumptions.63
Adopting the “default male” perspective in the law is harmful for two reasons. Firstly, when the law defaults to men, it “expects women to conform to an inappropriate standard to which they cannot or do not want to conform.”64 Secondly, adopting the masculine norm excludes women and implies they deviate from the norm.65 Elaborated in Chapter IV, under a “default male” perspective, certain experiences unique to women – like pregnancy and childbirth – are viewed as deviations from the norm.
It is important to be clear that this does not imply counterbalancing the law with a “default female” perspective, as that would not achieve gender equality within the law.66 Rather, the goal is for decision-makers to provide legal reasoning that does not rely on sexist assumptions.67
61 Janet Rifkin, “Toward A Theory of Law and Patriarchy” (1980) 3 Harv. Women’s LJ 83 at 83; Shelley A. Ryan “Wrongful Birth: False Representations of Women ' s Reproductive Lives” (1994) 78 Minn. L. Rev 857 at 863; Hunter, above n 59 at 52; Rhode, above n 58, at 619.
62 Perez, above n 52.
63 Ryan, above n 61, at 862
64 Kelly Stitely “A Woman of Her Word: A Feminist analysis of contract interpretation principles” (LLB (Hons) Dissertation, University of Otago, 2021) at 14.
65 Graycar, above n 24, at 10; Alice Belcher “A Feminist Perspective on Contract Theories from Law and
Economics” (2000) 8 Fem LS 29 at 37; Carrie Menkel-Meadow “Feminist Legal Theory, Critical Legal Studies, and Legal Education or ‘The Fem-Crits Go to Law School’” (1988) 38 Journal of Legal Education 61 at 72. See also Elizabeth Wolgast Equality and the Rights of Women (Cornell Univ Press, Ithaca, 1980).
66 Christine A Littleton “Reconstructing Sexual Equality” (1987) 75 CLR 1279 at 1321-1322.
67 Bartlett, above n 54 at 846.
The “default male” critique is closely associated with the conception of “women as other.” Both theories are different sides of the same coin. The former suggests men are normal in the eyes of the law, and the latter identifies women as other.
“Women as other” can be traced initially to Simone de Beauvoir’s 1949 work, The Second Sex.68 She poses the question, “What is a woman?” and answers:69
... humanity is male, and man defines woman not in herself but as relative to him; she is not regarded as an autonomous being ... He is the Subject, he is the Absolute – she is the Other.
For de Beauvoir, the male gender is the standard by which all matters are assessed.70 This claim corresponds to law. The male experience is the reference point from which laws are created, as law is predominantly authored by men using masculine reasoning.71 Therefore, the law cannot fully comprehend or address women’s experiences. Men are seen as the subject of the law and women as the other.
The “default male” perspective in law and the conception of “women as other” can be illuminated by asking “the woman question.”72 The woman question examines whether the law considers women’s experiences and how concepts enshrined in the law disadvantage women.73 Like the “default male” critique, “the woman question” does not require an answer favouring women.74 Instead, it requires the decision maker to be able to identify an absence of gender bias when justifying the decision.
68 de Beauvoir, above n 53.
69 At 13.
70 At 13; see also Ryan above, 61, at 862-863.
71 At 16; see also Nancy J. Chodorow The reproduction of mothering: Psychoanalysis and the sociology of gender (University of California Press, California, 1978).
72 Bartlett, above n 54, at 837.
73 at 846; See also Heather Wishik “To Question Everything: the inquiries of feminist jurisprudence” (1986) 1 University of California Press 64 at 72-77, where the author suggests a series of questions that could all be characterised as asking the “woman question.”
74 Bartlett, above n 54, at 846.
A common critique of critical feminist approaches is that they are ‘essentialist.’75 An essentialist theory claims there is an “essence” or commonality to the experience of a group.76 For example, that there is an essence to womanhood experienced by all women irrespective of culture, time, place or other characteristics such as race, class, or sexuality.77 The feminist framework adopted here does not claim that there is an essence to being a woman or seek to equate all women. This dissertation acknowledges intersectionality, and acknowledges that women are disadvantaged in the law at varying levels. 78 However, this dissertation highlights that women are generally disadvantaged in ACC law, and the feminist framework adopted aims to identify these disadvantages.
This chapter established the feminist framework that will be applied to ACC law to identify where gender bias exists and to illuminate where worldviews drive decision-making regarding women’s bodies.
75 Essentialism is one of the key critiques of post-modernism: see Andrew Sayer “Essentialism, social constructionism, and beyond” (1997) 45(3) The Sociological review 454 at 454; Jill Marshall “Feminist Jurisprudence: Keeping the subject alive” (2006) 14 Fem LS 27 at 30.
76 Patricia V Spelman Inessential Woman: Problems of Exclusion in Feminist Thought (Beacon Press, Boston, 1988) at 159.
77 Leslie Bender “From Gender Difference to Feminist Solidarity: Using Carol Gilligan and an Ethic of Care in
Law” (1990) 15 Vt L Rev 1 at 37.
78 For further detail on intersectionality see Trina Grillo “Anti-essentialism and intersectionality: tools to dismantle the master's house” (1995) 10 BWLJ 16 at 17.
IV. Applying the Feminist Framework
In this chapter, I will apply the feminist framework set out in Chapter III to the contexts of pregnancy as personal injury and cover for birth injuries under the ACC scheme. The aim of applying this framework will be to reveal the underlying worldviews that have driven decision- making in legislative and judicial material.
PART A: Pregnancy as Personal Injury
In this part, I will explore the underlying worldviews driving decision-making when determining whether pregnancy is a personal injury when pregnancy arises from wrongful conception. Wrongful conception arises when a person falls pregnant consequent to a negligently performed sterilisation.79
A. Legislative Background
In New Zealand, wrongful conception claims fall under the purview of the ACC scheme. To understand how the ACC scheme deals with wrongful conception, it is necessary to consider the development of the law regarding medical misadventure and treatment injury.
Under the original 1972 Act, cover was only available for personal injury by accident.80 It was not until the Accident Compensation Amendment Act 1974 that the ACC scheme was extended to include cover for personal injury caused by medical misadventure.81 Medical misadventure covered injuries caused by negligent medical treatment.82 Personal injury was also non- exhaustively defined83 and specifically included pregnancy consequent to sexual violation.84 Under this definition, wrongful conception was a medical misadventure, and the resulting pregnancy was a qualifying personal injury enabling cover.
79 Rosemary Tobin “Common law actions on the margin” (2008) 1 NZLR 37 at 46; Kerry Peterson “Wrongful conception and Birth: The Loss of Reproductive Freedom and Medical Irresponsibility” [1996] SydLawRw 29; (1996) 18 Syd LR 503 at 504; Melissa K. Smith-Groff “Wrongful Conception: When an Unplanned Child Has a Birth Defect, Who Should Pay the Cost” (1996) 61 MO. L. Rev 135.
80 Accident Compensation Act 1972, s 2(1).
81 Accident Compensation Amendment Act 1974, s 2(a)(ii).
82 Ken Oliphant “Defining ‘Medical Misadventure’ Lessons from New Zealand” (1996) 4(1) 1 at 11.
83 Accident Compensation Amendment Act 1974, s 2(1).
84 Accident Compensation Amendment Act 1974, s 105B(1).
As aforementioned, the 1992 reforms narrowed the provision of cover. 85 Personal injury was no longer non-exhaustively defined; rather, it was defined as death, physical injuries or a mental injury arising from a physical injury.86 The Act also no longer expressly provided that pregnancy arising from sexual offences was covered.87 The result of these changes posed an “insurmountable hurdle” to wrongful conception cases. 88 As pregnancy was not seen as a physical injury, cover for wrongful conception was denied.
In 2005, the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) (the 2005 Amendments) introduced the concept of “treatment injury” as a replacement for medical misadventure.89 To receive cover, a person must suffer a personal injury caused by treatment resulting from the actions or omissions of a registered health professional.90 This amendment reflects the law as it stands today.
B. Case Analysis
Having set out the legislative background, I will now undertake a case analysis of the judgements determining whether pregnancy is a personal injury post wrongful conception. This analysis will be limited to aspects of the cases where the worldviews are most evident.
1. L v M (1979)91
(a) J udgement
The early position on pregnancy as personal injury arises from Cooke J’s (as he was then) dissent in L v M, a case regarding cover for pregnancy consequent to a failed sterilisation. While the majority did not engage in determining whether the parents were entitled to cover, Cooke J dissented and gave his determination on the question.92 Thus, Cooke J’s judgement is focused upon as it draws out the worldviews in the decision.
85 Accident Rehabilitation and Compensation Insurance Act 1992.
86 Accident Rehabilitation and Compensation Insurance Act 1992, s 4.
87 Accident Rehabilitation and Compensation Insurance Act 1992.
88 Tobin, above n 79, at 49.
89 Accident Compensation Act 2001 s 20(2)(b), amended by section 13 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005.
90 Accident Compensation Act 2001 section 32(1). Treatment is defined under section 33 of the ACA.
91 L v M [1979] NZCA 59; [1979] 2 NZLR 519 (CA).
Cook J held that under the 1972 Act, an unwanted pregnancy or childbirth could not “naturally be described as personal injuries,”93 and as such, concluded that cover was not available.
(b) A nalysis
Cooke J uses ‘natural’ as an interpretive tool to explain why pregnancy is not a personal injury. As Fish indicates, when text appears to have a plain or natural meaning, it is based on the deep assumptions in the interpreter’s mind. 94 The lack of justification as to why pregnancy cannot “naturally” be a personal injury suggests a worldview rather than objective reasoning compels this conclusion. A lack of recognition of the harms of pregnancy indicates Cooke J assesses harm against injuries that commonly occur to men. As pregnancy is uniquely a female experience, it is unrecognised as a harm when measured against the male body.
This reinforces the conception that as women’s natural role is child-bearing, it follows that women are expected to endure the harms that arise in the role. Thus, pregnancy is not seen as an injury, and women receive differential treatment under the scheme based on these gender roles. If we ask the woman question here, which asks whether women and their experiences have been considered, Cooke J’s perception ignores the mother’s desire not to fall pregnant. From a woman’s perspective, falling pregnant after a sterilisation procedure would be very unnatural and a breach to her reproductive autonomy. This narrow conception of harm others women’s experiences and reflects alignment with the traditional worldview.
2. XY v ACC (1984)95
(a) J udgement
XY v ACC concerned a mother seeking compensation for child maintenance costs post her wrongful conception. In determining compensation was unavailable, the Court commented on ACC’s determination that pregnancy was a personal injury under the Accident Compensation Act 1982.96
93 At 530.
94 Fish “The Law Wishes to Have a Formal Existence,” above n 38, at 175.
95 XY v ACC [1984] NZHC 21; (1984) 4 NZAR 219.
96 At 377.
Jeffries J articulates that describing pregnancy as a personal injury is:97
...highly artificial...to name regeneration of the species, perhaps its most fundamental urge, an injury, in whatever circumstances, is to introduce novel and very fundamental changes to accepted human thinking.
He adds it is a “welcome return to normalcy” for a Court to find there is no longer an injury after birth and, thus, no continuing loss.98
(b) A nalysis
Applying the default male critique reveals that when Jeffries J refers to ‘accepted human thinking,’ he means accepted ‘male’ thinking, and conceptions of normalcy and injury are centred around the male body and masculine ideals. Asking the woman question would show that for a woman, falling pregnant after a sterilisation to prevent pregnancy is not a fundamental urge. Rather, it is a breach of their reproductive autonomy, and the consequent impacts of the unwanted pregnancy are physical injuries.
From this masculine standpoint, there is no conception of how pregnancy and childbirth could constitute a loss to women as it is seen as part of their natural role as child-bearers. Failure to recognise such harms others women’s experiences and autonomy thus, resulting in a narrow conception of harm as both physical and intangible harms are unrecognised. Consequently, revealing alignment with the traditional worldview.
(a) J udgement
Following the 1992 reform, many cases100 similar to MM v ARCIC held that as pregnancy was a natural process, it was not an “adverse consequence” amounting to a personal injury.101
97 At 381.
98 At 381.
99 MM v Accident Rehabilitation & Compensation Insurance Corporation DC Rotorua, DN79/96, DCA217/95, 12 September 1996.
100 See DK v Accident Rehabilitation & Compensation Insurance Corporation [1995] NZACC 90; [1995] NZAR 529; Bell v
Accident Rehabilitation & Compensation Insurance Corporation DC Wellington, DN98/99, DCA98/96, 22 April 1999.
101 MM v ARCIC, above n 99, at 3.
(b) A nalysisNatural process reasoning is used here to argue that as pregnancy is a normal biological function, it cannot be described as a personal injury. Under this reasoning, injuries are viewed as unnatural occurrences, and pregnancy as a natural occurrence. Thus, to say that an injury arises from a natural process such as pregnancy would diminish the integrity of pregnancy.
Moreover, this reinforces gender roles. Women are expected to endure the harms sustained during pregnancy and childbirth as it is viewed as part of their natural role as child-bearers. Thus, women receive differential treatment based on these roles. Failure to recognise that pregnancy can be an adverse consequence to women reflects a narrow conception of harm, as it ignores the physical harms that arise from pregnancy as well as the intangible losses to reproductive autonomy that women face when falling pregnant against their express wishes. Instead, injury is defined according to harms that commonly occur to the male body, consequently leading to the exclusion and othering of women’s harms, overall reflecting alignment with the traditional worldview.
(a) J udgement
This case concerned a mother seeking compensation for an unwanted pregnancy post a wrongful conception. Contrasting earlier decisions, Patient A v Health Board X held that pregnancy consequent to wrongful conception was an “interference with her bodily integrity.”103 Baragwanath J stated from the mother’s perspective, the prospect of a child was not a joy but a burden she sought to avoid.104
(b) A nalysis
This represents a significant shift from prior precedent towards an alignment with the progressive worldview. Baragwanath J operates from an inclusive frame of reference in considering the harms to a mother arising from wrongful conception rather than limiting
102 Patient A v Health Board X HC Blenheim, CIV-2003-406-0014, 15 March 2005.
103 At [55]. Baragwanath J seems to suggest that interference with bodily alone might constitute a physical injury, however this is inconsistent with the case law requiring detrimental physical impact. This issue was later resolved in Murray v ACC 2013 NZHC 2967 where it was held that “interference with bodily integrity” was only a physical injury if it was associated with a physical harm.
104 At [55].
acknowledgement to male-defined harms. Recognition of bodily integrity shows a broad conception of harm as it respects breaches of reproductive autonomy. Furthermore, his judgement respects a parent’s choice to limit the size of their family and recognises that not every conception is wanted or a joy. Further, this eliminates differential treatment based on gender roles, as the traditional conception of women as child-bearers does not impact a finding of harm.
5. ACC v D (HC) (2007) 105
(a) J udgement
Under a similar fact scenario to Patient A, in ACC v D, Mallon J held that pregnancy consequent to wrongful conception was considered a coverable personal injury.106 Mallon J highlights that gone are the days when children are viewed as blessings,107 identifying that social attitudes towards this ideology, the traditional roles of women, and anachronist notions of contraception are out of date in New Zealand’s changed social context.108 She also acknowledges that pregnancy has been considered a physical injury in overseas jurisdictions.109
Operating from this basis, her Honour identifies that pregnancy results in several physical ailments,110 which many could easily describe as “harm, detrimental physical impacts, impairment, or interference,” if caused by a different impact upon the body.111 Further, she finds pregnancy being a natural process is irrelevant when determining whether pregnancy is a personal injury.112
105 ACC v D [2007] NZHC 2144; [2007] NZAR 679 (HC).
106 At [94]; Injury Prevention, Rehabilitation, and Compensation Act 200.1
107 At [55].
108 At [53] citing Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131 per Kirby J at [105].
109 At [59]; See Cattanach v Melchior above n 108, at [148]- [149] and [179] per Kirby J it was identified that pregnancy post a failed sterilisation was conceptualised as harm to the mother; See also Parkinson v St James & Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2001] 3 WLR 376 at [56] – [57] per Hale LJ where it was held pregnancy post a failed sterilisation was seen as a an invasion of bodily integrity; See also McFarlane v Tayside Health Board [1999] UKHL 50; [2000] 2 AC 59 at 977 per Lord Steyn which held that pregnancy post a failed sterilisation was an injury regardless of pregnancy being a natural bodily process.
110 At [71]-[76]; See Mallon J’s reference to the Australian Medical Association Journal at [72]- [73] which
lists stages and features of pregnancy including, “nausea and tiredness... constipation, haemorrhoids... Leg cramps, backache and breathlessness;” See also McFarlane v Tayside Health Board above n 109, at 981, where Lord Hope states “the fact is that pregnancy and childbirth involve changes to the body which may cause, in varying degrees, discomfort, inconvenience, distress and pain;” See also Parkinson above n 109, at [64] –[69], where Hale LJ referred to pregnancy resulting in, ““profound physical changes” that bring with them “a risk to life and health greater than in her non-pregnant state.”
111 ACC v D (HC) above n 104, at [76].
112 At [77]-[79].
Regarding the 1992 reform that removed the specification of pregnancy post sexual violation as a covered personal injury, 113 Mallon J considered that absent an express exclusion for pregnancy, cover for pregnancy was still available under the 2001 Act.114 Thus, she concludes pregnancy is a ‘physical injury’ which constitutes a ‘personal injury.’115
(b) A nalysis
Mallon J operates from an inclusive frame of reference by interpreting injury as inclusive of women’s experiences rather than defining injury against the default male body. Consequently, women’s experiences are not othered, rather, they are recognised as she addresses the reality of the physical consequences of pregnancy. Further, in recognising that pregnancy can constitute a personal injury, gender roles are eliminated as women are not excluded from cover on the basis that child-bearing and rearing are women’s natural roles. Moreover, the provision of cover is justified as Mallon J identifies that injuries of a similar nature to those sustained during pregnancy are covered under the Act.116
Eliminating such gender roles is further illustrated by recognising that the traditional roles of women and anachronistic ideals of contraception are outdated. Rather than homemakers and child-bearers, women are seen as autonomous persons who can choose to make reproductive decisions that should be respected. Consideration of both tangible and intangible harms reflects a broad conception of harm. Importantly, Mallon J also notes that the fact pregnancy is a natural process does not exclude it from being considered a personal injury. This rejects the traditional notion of pregnancy as a net positive outcome by virtue of it being a function that normally happens in the continuance of the human species, or the idea that because pregnancy “naturally” occurs to women, it cannot be thought of as an injury. Instead, Mallon J identifies that pregnancy can be both a natural process and a personal injury. In this way, women’s experiences are recognised and not othered, reflecting overall alignment with the progressive worldview.
113 The Accident Rehabilitation and Compensation Insurance Act 1992.
114 ACC v D (HC) above n 105, at [82] – [84]. Mallon J attributes the inclusion of pregnancy in the definition of personal injury prior to 1992 due to the different era in which those definitions were in force creating the necessity to make it clear that pregnancy when caused by a sexual offence was a personal injury; Injury Prevention, Rehabilitation, and Compensation Act 2001.
115 At [94].
116 Injury Prevention, Rehabilitation, and Compensation Act 2001.
6. ACC v D (CA) (2008)117
(a) J udgement
The majority of the Court of Appeal overturned Mallon J’s High Court judgement, finding that as pregnancy was not a physical injury, it could not constitute a personal injury.118 The Court held that the “ordinary and natural” meaning of ‘personal injury and ‘physical injury’ does not encompass pregnancy, as the terms require “harm or damage.”119
While identifying that such an interpretation may appear “odd,” as pregnancy resulting from medical misadventure would be the only result of medical misadventure where cover was not available, the Court rationalised this outcome by their position that no injury occurs in wrongful conception cases.120 Further, the Court relies on the observation made by Glazebrook J in Harrild, that there may, “in most cases be good public policy reasons for not regarding a pregnancy and the delivery of the baby as physical injuries.”121
As for the 1992 reform,122 the majority considered that as pregnancy was no longer included explicitly in the Act, no cover for pregnancy was available.123
In dissent, Willaim Young P held that while “personal injury” predominantly applied to harms associated with external trauma, it was not so confined.124 It included the adverse consequences of a “work-related gradual process, disease or infection” and, importantly, s 20(2)(f) absorbed the consequences of a “gradual process, disease or infection” caused by medical misadventure to be a personal injury.125 Thus, Willian Young P identified that the expressions “personal injury,” “physical injury,” and “gradual process” as sufficiently broad to encompass unwanted pregnancy post medical misadventure.126
117 ACC v D (CA), above n 41.
118 At [54]. Ellen France J delivered the majority judgement on behalf of Arnold J and herself with Willam Young P dissenting.
119 At [55]; Injury Prevention, Rehabilitation, and Compensation Act 2001.
120 At [69].
121 At [69] citing Harrild v Director of Proceedings [2003] NZCA 125; [2003] 3 NZLR 289 at [65] per Glazebrook J delivering the dissenting judgement on behalf of Blanchard J and herself.
122 The Accident Rehabilitation and Compensation Insurance Act 1992.
123 ACC v D (CA), above n 41, at [62]; Injury Prevention, Rehabilitation, and Compensation Act 2001.
124 At [77].
125 At [77]; Injury Prevention, Rehabilitation, and Compensation Act 2001.
126 At [78]; Injury Prevention, Rehabilitation, and Compensation Act 2001.
(b) A nalysis
The “natural and ordinary meaning” is used as an interpretive tool to define ‘personal injury’ and ‘physical injury’ as exclusive of pregnancy. As Fish indicates, when text appears to have a plain or natural meaning, it is based on the deep assumptions in the interpreter’s mind.127 Here, the lack of justification as to why their interpretation is the ‘natural and ordinary meaning’ indicates a worldview, rather than objective facts, drives this conclusion.
The majority’s reasoning appears to align with the traditional worldview. Failure to recognise the harms of pregnancy consequent to wrongful conception indicates the majority measures harm against injuries that commonly occur to men. As men do not experience pregnancy, women’s harms from pregnancy remain unrecognised and, consequently, are othered by not being considered injuries. Moreover, women’s experiences are subordinated, given this uniquely female experience is the only result of medical misadventure where cover is denied.
Further, when asking the woman question, we can see that women’s experiences are not considered as the Court does not contemplate the physical harms of pregnancy as provided by Mallon J in the High Court judgement.128 Nor is there consideration of intangible harms such as breaches of reproductive autonomy in wrongful conception cases. This indicates strong conceptions of gender roles. As child-bearing is seen as women’s natural role, women are expected to endure the consequences that accompany pregnancy. This reflects a narrow conception of harm, as there is no recognition of even the existence of harm. Thus, this masculine reasoning aligns with the traditional worldview.
Notably, for William Young P to come to a completely different and plausible alternative to the interpretation of physical and personal injury indicates the majority’s interpretation is not objectively the “natural and ordinary meaning.” Rather, it suggests that it is only the “natural and ordinary meaning” to those who subscribe to the same worldview. Thus, it is a product of the traditional worldview.
127 Fish “The Law Wishes to Have a Formal Existence,” above n 38, at 175.
128 ACC v D (HC), above n 105, at [71]-[73].
Neither the Court here nor in Harrild justify what policy reasons they rely on when stating there are “good public policy reasons for not regarding a pregnancy and the delivery of the baby as physical injuries,”130 Similar to above, the lack of clear policy justification for such a claim indicates a worldview has driven this statement. The idea that pregnancy should not be viewed as an injury connects with the traditional notion that pregnancy is a net positive outcome. Under this reasoning, to suggest that pregnancy constitutes an injury would degrade the integrity of pregnancy, as an unnatural element (injury) is imposed upon a natural event (pregnancy). Just as above, such reasoning aligns with the traditional worldview as it defaults to male bodies when conceptualising harm, resulting in a narrow conception of harm that others women’s experiences.
In contrast, William Young P operates from the progressive worldview. His Honour bases his decision on the breadth of cover the scheme provides and gives clear justification for a broad interpretation of physical and personal injury. In determining that pregnancy can constitute a personal injury, William Young P operates from an inclusive perspective that allows for women’s harms from pregnancy to be recognised and does not differentiate recognition of injuries based on gender roles.
7. Allenby v H (2012) 131
(a) J udgement
In the landmark case of Allenby v H, the Supreme Court unanimously held that pregnancy was a personal injury for which cover was available in circumstances of medical misadventure and sexual violation.132 Blanchard J delivered the majority judgement on behalf of McGrath and William Young JJ. While Elias CJ and Tipping J generally agreed with the majority judgement, they both wrote separately.
129 Harrild v Director of Proceedings, above n 121.
130 ACC v D (CA), above n 41, at [69] citing Harrild v Director of Proceedings, above n 121, at [65] per Glazebrook J.
131 Allenby v H [2012] NZSC 33.
132 At [84]; Elias CJ wrote separately to indicate a differing view regarding cover, Tipping J wrote separately to give his own reasons given the significance of the issues involved.
This case concerned a mother seeking compensation for pregnancy post a failed sterilisation, either through a common law action in negligence, or if that was barred by the Act,133 under the ACC scheme. In determining the availability of cover, the Court discussed the approach of the legislative scheme to pregnancies consequent to medical misadventure and sexual violation, as legislative amendments often impacted both situations.
The Court determined that the 1992 amendments had not changed the position to allow cover for pregnancy.134 This was based on three main reasons. Firstly, it was unlikely that cover would be removed without expressly stating this in the amendments, in any Parliamentary materials, or Law Commission reports preceding the change.135 Secondly, the removal of cover for pregnancy subsequent to medical misadventure and rape did not align with the purpose of the amendments, which was to narrow cover to cut costs, as the provision of cover for pregnancy was not costly.136 Lastly, given the 1992 Minister of Labour’s report stated there would be no return to the right to sue in respect to medical misadventure under the 1992 Act,137 the Court found this signalled cover for pregnancy post medical misadventure was still available.138
The Court then determined whether pregnancy was a coverable personal injury by identifying whether pregnancy was a physical injury and whether it was caused in one of the ways specified in s 20(2).139
133 Injury Prevention, Rehabilitation, and Compensation Act 2001, s 317 bars common law proceeding if cover is provided under the Act.
134 Allenby v H, above n 131, at [68]- [70] per Blanchard J.
135 At [68]. In contrast, there was specific mention in the parliamentary reports expressly reversing cover for effects which previously had cover pre-1992 via judicial extension. Back injury caused merely by bodily movement (Wallbutton v Accident Compensation Commission [1983] NZACR 629 (HC)), mental injury where no physical injury was suffered (Accident Compensation Corporation v E [1991] NZCA 167; [1992] 2 NZLR 426 (CA)) and injury not shown to be caused by an identified external event (Accident Compensation Corporation v Mitchell [1991] NZCA 162; [1992] 2 NZLR 436 (CA)); For parliamentary reports preceding the change see: Ministerial Working Party on the Accident Compensation Corporation and Incapacity (April 1991); WF Birch Accident Compensation: A Fairer Scheme (Office of the Minister of Labour, Wellington, 1991); For the Law Commission report see: Law Commission Personal Injury: Prevention and Recovery: Report on the Accident Compensation Scheme (NZLC R4, 1988)
136 At [69] citing WF Birch, above n 135, at 8; See also ACC v D (HC) above n 105, at [6] Mallon J identifies that only 72 such medical misadventure claims had been made over an 11-year period from 1992 to 2003 which averaged to six-seven per year.
137 Allenby v H, above n 131, at [70].
138 At [70].
139 Injury Prevention, Rehabilitation and Compensation Act 2001, s 26(1).
The majority held that pregnancy caused by rape “is a physical consequence of rape and should not be differentiated... from any other physical consequence such as a tearing of the vagina.”140 Finding that pregnancy caused by rape was a physical injury, the majority held it followed that pregnancy caused by medical misadventure was also a physical injury. Both Elias CJ and Tipping J conclude the physical impacts of pregnancy clearly fell under the meaning of physical injury constituting a personal injury.141 They identified the significant physical impacts of pregnancy cause “a substantial degree of physical discomfort, pain and suffering,”142 which are “of greater consequence than the examples given of a strain or sprain.”143
The Court agreed that pregnancy resulting from sexual violation would have cover under s 20(2)(a) (“personal injury caused by an accident”). As rape involves the application of a force external to the victim’s body, it is an accident.145 Once establishing pregnancy consequent to rape was a personal injury, the Court deemed it must follow that pregnancy consequent to medical misadventure is a personal injury with cover under s 20(2)(b) (“personal injury caused by medical misadventure”).146
The Court also unanimously held that the fact that pregnancy is a natural process leading to the regeneration of the human species does not mean there should be no cover available for pregnancy consequent to medical misadventure or rape.147 Tipping J aptly articulates the Court’s position and states:148
A woman is entitled to choose whether or not to become pregnant. If she does not wish to do so, the consequences of her becoming pregnant are not to be discounted because pregnancy per se is a natural process.
140 Allenby v H, above n 131, at [72].
141 At [18] per Elias CJ and at [88] per Tipping J.
142 At [88] per Tipping J.
143 At [19] per Elias CJ and at [88] per Tipping J; Elias CJ refers to Hale’s LJ account of the physical consequences of pregnancy in Parkinson v St James and Seacroft University Hospital NHS Trust, above n 109, at [63]-[68] and Mallon’s J judgement in ACC v D (HC), above n 105, at [71]-[74].
144 Injury Prevention, Rehabilitation and Compensation Act 2001.
145 Injury Prevention, Rehabilitation and Compensation Act 2001, s 25(1)(a)(i).
146 Allenby v H, above n 131, at [76] per Blanchard and at [87] per Tipping J.
147 At [80] per Blanchard J.
148 At [89].
The majority noted that denying cover for pregnancy caused by medical misadventure would create an “odd” gap as it would be the only result of medical misadventure without cover, which the Court highlighted would be “detrimental for the woman patient,” who could not recover compensation without litigation.149 As such, they view pregnancy as a coverable personal injury.
Lastly, the majority and Tipping J address that a finding of pregnancy as a personal injury consequent to medical misadventure would not open the door to cover for unwanted pregnancies resulting from consensual sex, known colloquially as accidental pregnancies. For example, an unintended pregnancy resultant from a burst condom.
The majority note that for an accidental pregnancy, it “cannot sensibly be said that there has been an “accident” within the statutory definition.”150 Given the lack of indication from legislation and Parliament on the availability of cover, the majority noted the meaning of “accident” must be adjusted in the context of consensual sex. Essentially, the majority holds that if a woman consents to sex, she consents to an unintentional pregnancy, and the existence of consent vitiates the accidental pregnancy falling under the definition of “accident” under the Act.151 In conclusion, they state providing cover for accidental pregnancy “plainly would be outside the purpose of the accident compensation scheme.” 152
Tipping J agrees with the majority that “parliament cannot have intended” cover for accidental pregnancies and identifies the need to adjust the definition of “accident” due to the differing context “of a fundamental biological process whereby human life is perpetuated.”153
He states this does not suggest “that in other contexts, such as sports injuries, the presence or absence of consent should dictate whether an accident has occurred.”154 Concluding that
149 At [77].
150 At [82].
151 At [82]; Injury Prevention, Rehabilitation and Compensation Act 2001.
152 At [82].
153 At [93].
154 At [94].
unintentional injuries suffered from intentional participation in sport would still have cover, yet unintentional pregnancy from consensual sex would not.155
Elias CJ refrains from speaking on accidental pregnancy and expresses “considerable doubt about whether the concept of “consent,” referred to by Blanchard and Tipping JJ, is useful in the context of the legislation and the meaning it gives to “accident.”156
(b) A nalysis
Based on a strong evidentiary foundation, the Court provided a comprehensive analysis to conclude that the 1992 amendments did not reverse the availability of cover for pregnancy under the scheme. Justification based on clear policy reasoning indicates objectivity of the conclusion. This can be contrasted to the approach of ACC v D (CA), where terms such as “natural and ordinary meaning” were used to reach conclusions without clear policy justifications, allowing the traditional worldview to drive decision-making. Thus, the Supreme Court’s reliance on objective evidence to determine legal questions prevented gendered assumptions from entering the law. This limits differential treatment based on gender roles, indicating alignment with the progressive worldview.
The Court operates under inclusive reasoning in finding that pregnancy constitutes a personal injury, as it acknowledges harms that occur to all genders. This allows recognition of the physical impacts of pregnancy and prevents othering women’s experiences. This increases access to ACC cover for women, as cover is now available for a broader range of harms that women experience instead of being limited to harms typically experienced by men.
Notably, the Court identifies that pregnancy being a natural process is irrelevant when determining whether it is an injury. This highlights a progressive line of thinking as it rejects the traditional notion that because pregnancy “naturally” occurs to women it cannot be considered an injury. Rather, the Court identifies that pregnancy can be both a natural process
155 At [94].
156 At [30].
and an injury. Disregarding the natural process argument does not degrade the integrity of pregnancy. Instead, it recognises the harm of an unwanted pregnancy, as pregnancy is not always a net positive outcome, especially for women who actively choose sterilisation to prevent pregnancy. This approach respects women’s reproductive choices and acknowledges breaches of reproductive autonomy when the right to choose if and when to have children is taken away. This reflects a broad conception of harm and further alignment with the progressive worldview.
Recognising that it was “detrimental” 157 for women suffering wrongful conception to be the only group excluded from cover in medical misadventure cases clearly shows consideration of how women would be impacted if the precedent set by ACC v D (CA) was followed,158 and illustrates effective use of asking the woman question. Exclusion of women’s harms through differential treatment operates through notions of child-bearing as women's natural role where women are expected to bear the harms that come with pregnancy. By recognising pregnancy as a personal injury, the Court eliminates differential treatment based on gender roles, prevents subordination of women’s harms, and fills the ‘odd gap’ created in ACC v D (CA).159
The Court also noted how women would be disadvantaged by denying ACC coverage for pregnancy as their only method of redress would be litigation, which is both personally and financially costly. By allowing cover, women have equal opportunity for inexpensive and timely compensation that isn’t coupled with the burden and cost of the judicial system. Overall, this reflects alignment with the progressive worldview in determining this question.
The majority and Tipping J identified no indication from Parliament as to whether accidental pregnancy had cover under the scheme. Despite this, both concluded it was “plainly” clear that “Parliament cannot have intended” the provision of cover for accidental pregnancy.160
As Fish implies, when text appears to have a plain meaning, it is based on the deep assumptions in the interpreter’s mind.161 Here, absent any legislative and Parliamentary material to justify
157 At [77].
158 ACC v D (CA), above n 41.
159 At [69].
160 Allenby v H, above n 131, at [93].
161 Fish “The Law Wishes to Have a Formal Existence,” above n 38, at 175.
why the exclusion of cover for accidental pregnancy is “plainly” clear, indicates a worldview has driven the interpretation.
Tipping J’s reference to pregnancy as “a fundamental biological process whereby human life is perpetuated”162 indicates operation of the traditional worldview. Consensual sex receives differential treatment, compared to other accidents, by virtue of any resultant pregnancy being a natural process. It is interesting to note that while Tipping J rebukes the use of natural process reasoning to discount a finding of pregnancy as a personal injury, he utilises such reasoning to discount consensual sex from constituting an accident. The use of natural process reasoning aligns with the traditional worldview, as it relies on traditional notions of pregnancy naturally occurring to women as a basis to justify distinct treatment.
Tipping J concludes that unintentional physical injuries arising from wilful participation in sport is covered, but unintentional pregnancy arising from consensual sex is not. As Simon Connell notes, under the ACC scheme, risk-taking and carelessness is generally not a basis for disqualification under the Act,163 which leads to the question, what policy and purposes justify adjusting the definition of “accident” for consensual sex? No policy justification is provided, rather, natural process reasoning is used as a basis for differential treatment. This has the effect of othering women’s experiences and reflects alignment with the traditional worldview. This concept of accident is exclusionary of women’s experiences of accidental pregnancy as it remains defined by accidents commonly occurring to the male body, which does not include pregnancy.
Notably, Elias CJ has reservations on this approach to accidental pregnancy and does not reach the same conclusions as the rest of the bench. This casts doubt on whether denying cover for accidental pregnancy is “plainly clear” as Parliament’s intention. Rather, it indicates that it is only obvious to those who subscribe to the same worldview. For another Judge, namely the only female judge on the bench, to come to a completely different and plausible alternative, suggests that the interpretation of her male counterparts is not in fact objectively clear, but rather subjectively apparent to those operating under the traditional worldview.
162 Allenby v H, above n 131, at [93].
163 Simon Connell “Sex as an Accident” (2012) 6 NZLJ 188 at 189.
This is not to say that Blanchard and Tipping JJ only operate under the traditional worldview. As shown above, majority of their judgement aligns with the progressive worldview. Rather, it highlights the dynamic use of worldviews as different worldviews can be aligned with when answering different questions.
C. Isolating the Worldviews
Having undertaken a case analysis of pregnancy as personal injury, I will now summarise the features of the traditional and progressive worldview illuminated through the feminist framework.
Features of the traditional worldview that were revealed include, injury being defined and interpreted through a masculine perspective, a narrow conception of harm, utilisation of natural process reasoning and strong conceptions of gender roles.
(a) I njury defined and interpreted through a masculine perspective
Under the traditional worldview, injury was defined according to injuries that commonly occur to the male body. As men do not experience pregnancy, the harms of pregnancy were unconsidered and uncovered. This was evident in L v M when Cooke J held that pregnancy could not naturally be described as a personal injury164 and when Jeffries J in XY v ACC commented that considering pregnancy as a personal injury was “highly artificial.”165 It was also implicit in the majority’s reasoning in ACC v D (CA) when the Court held the “natural and ordinary meaning” of personal and physical injury does not include pregnancy. 166
All three statements measure pregnancy against the male-defined concept of injury and come up short. It did not seem “natural” to Cooke and Jeffries JJ to say pregnancy was an injury, as the physical impacts of pregnancy are measured against a male body that does not experience pregnancy. In ACC v D (CA), without an evidentiary basis to justify that the “natural and
164 L v M above n 91, at 530.
165 XY v ACC, above n 95, at 380.
166 ACC v D (CA) above n 41, at [55].
ordinary meaning” 167 excluded pregnancy, such a statement was revealed to be premised on the idea that “personal injury” was defined by the male body.
(b) N arrow conception of injury
Masculine interpretations of injury fail to recognise women’s harms consequent to a wrongful conception. An example of this was in XY v ACC when Jeffries J stated, “to name regeneration of the species, perhaps its most fundamental urge, an injury, in whatever circumstances, is to introduce novel and very fundamental changes to accepted human thinking.”168 ACC v D (CA) is also an example, as the majority did not find pregnancy as constituting an injury because it did not carry any harm.169
The default male critique revealed that when Jeffries J referred to ‘accepted human thinking’ he meant accepted ‘male’ thinking. For a woman, falling pregnant after undergoing a sterilisation procedure to avoid pregnancy, is not a fundamental urge. Rather, it is a breach of their reproductive autonomy, and the consequent impacts of the unwanted pregnancy are physical injuries. Failure to recognise these harms of pregnancy in both cases reveals a narrow conception of harm.
(c) U tilisation of natural process reasoning
Natural process reasoning was used to argue that because pregnancy is a process that naturally occurs to women, it cannot be an injury. This reasoning sees pregnancy as a net positive outcome by virtue of it leading to the reproduction of the human species and regards the concept of injury and accident as an aberration or an unnatural consequence. Given these notions, pregnancy cannot be considered a personal injury, as doing so implies an unnatural element to pregnancy, consequently marring its inherent integrity.
The cases following the 1992 reform relied on this reasoning.170 It was also particularly evident in XY v ACC when Jeffries J notes that considering “regeneration of the species, perhaps its most fundamental urge,” as a personal injury would be a “novel idea.”171 It was also evident in Allenby when Tipping J referred to pregnancy as “a fundamental biological process whereby
167 At [55].
168 XY v ACC, above n 95, at 380.
169 ACC v D (CA) above n 41, at [55].
170 MM v ARCIC above n 99.
171 XY v ACC, above n 95, at 380.
human life is perpetuated” 172 as a reason to exclude accidental pregnancies from cover. These statements hinge on the idea that because pregnancy is a natural process, the integrity of pregnancy would be compromised if it were to be considered an injury in XY v ACC, and an accident in Allenby.
(d) S trong conceptions of gender roles
The role of child-bearing and rearing is imposed upon women by failing to recognise the physical impacts and breaches of reproductive autonomy from pregnancy consequent to a wrongful conception. Because child-bearing is seen as women’s natural role, wrongful conception is not seen as causing injury to a woman; rather, she is expected to endure the consequences of a wrongful conception. This conception was present in L v M, XY v ACC, MM v ARCIC and ACC v D (CA), consequently reinforcing these roles upon women.
(e) C onsequences of the Traditional Worldview
Alignment with the traditional worldview others women’s experiences by failing to recognise pregnancy as a personal injury. Consequently, women receive differential treatment under the scheme, as they do not receive cover for the physical impacts of pregnancy, despite them being similar in nature to other covered injuries. Such differential treatment was evident in ACC v D (CA) when the exclusion of pregnancy from cover created an “odd gap” where pregnancy was the only uncovered injury consequent to medical misadventure. Thus, under the traditional worldview, women receive less cover than men under the ACA, contributing to gender biased outcomes in the ACC scheme.
Features revealed of the progressive worldview include operating from an inclusive frame of reference, a broad conception of harm, finding natural process reasoning irrelevant, and eliminating gender roles.
(a) O perating from an inclusive framework
Recognising pregnancy as a personal injury operates from an inclusive frame of reference as it recognises the existence of harm, regardless of gender. This was evident in ACC v D (HC) and Allenby, where both Courts recognised that the physical impacts of pregnancy constituted a
172 Allenby v H, above n 131, at [93].
“personal injury,” as the physical consequence of pregnancy would easily be described as a personal injury if caused by any other method.173 Both decisions operate from an inclusive perspective in identifying the physical impacts of pregnancy should be covered as they share similar characteristics with other covered injuries.
(b) B road conception of harm
Operating from an inclusive framework allowed both physical and intangible injuries to be recognised. Moving away from the conception that pregnancy is not an injury is illustrated by Mallon J in ACC v D (HC) as she notes that gone are days when children are viewed as blessings.174 Such a statement reflects the conception that pregnancy is no longer viewed as an overall benefit to society, rather, it can be an injury to the mother. Further, both ACC v D (HC) and Allenby recognised the physical harms of pregnancy consequent to wrongful conception.175 This reflects a departure from the traditional worldview where injuries commonly suffered by men are predominantly recognised.
In Patient A, intangible harms were recognised when Baragwanath J held a wrongful conception suffered by women constituted an “interference with bodily integrity” and further found that for a woman who has undergone sterilisation, the prospect of a child would not herald a sense of joy but rather would be a burden she sought to avoid.176 This acknowledges that not only does a wrongful conception result in physical harm, it also is a breach of bodily integrity and reproductive autonomy. Thus, reflects a broad conception of harm.
(c) I rrelevance of natural process reasoning
Natural process reasoning is considered irrelevant when determining whether pregnancy is a personal injury. The progressive worldview holds that the injury of pregnancy is not diminished by virtue of it being a natural process, nor does identifying pregnancy as a personal injury erode the integrity of pregnancy. Pregnancy can be both a natural process and a physical injury, as the two are not mutually exclusive. This view was firmly held by Mallon J in ACC v D (HC) and by Tipping J in Allenby, with Tipping J stating that “the consequences of her becoming pregnant are not to be discounted because pregnancy per se is a natural process.” 177 Both of
173 ACC v D (HC) above n 105, at [76]; Allenby, above n 131, at [19] per Elias CJ and at [88] per Tipping J.
174 At [55].
175 At [76]; Allenby, above n 131, at [19] per Elias CJ and at [88] per Tipping J.
176 Patient A v Health Board X, above n 102, at [55].
177 ACC v D (HC) above n 105, at [77]-[79]; Allenby v H, above n 131, at [89].
their Honours recognise that despite pregnancy being a biological function, it can still constitute an injury to a woman who has chosen not to have children.
(d) E liminating gender roles
Recognising pregnancy as a personal injury means women are not confined to their natural role of child-bearer, rather, women are autonomous creatures and have the choice to determine what role to take. Further, there is no differential treatment, as women are not expected to endure the loss of wrongful conception by virtue of their natural role as child-bearers. Thus, recognition that pregnancy can constitute a personal injury in Patient A, ACC v D (HC), and Allenby reflect that women’s harms are not erased on the basis of the gender roles women are confined to, rather, women’s harms are recognised based on clear policy justifications.
(e) C onsequences of the progressive worldview
Recognising pregnancy as a personal injury under the scheme acknowledges women’s injuries and prevents othering women’s experiences. This reduces differential treatment based on gender. Consequently, women will receive more cover under the scheme, resulting in an increase in outcomes achieving gender equality.
PART B: Cover for Birth Injuries
In this part, I will explore the worldviews underlying the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Act 2022 (2022 Amendments) regarding its expansion of the ACC scheme to provide cover for birth injuries and the position of the scheme prior to these changes. Birth injuries are physical harms suffered by a birthing parent during labour and delivery.
A. The legislative machinery
Prior to the 2022 Amendments, birth injuries were not covered under the scheme as they did not fall under the definition of “accident” under the Act.178 An “accident” requires an injury arising from a force external to the body. In contrast, birth injuries are considered to arise from internal forces, as the foetus is legally considered part of the birthing parent during labour and delivery.179 Cover is only available if treatment given (or not given) during birth causes an injury.180
The 2022 Amendments alters this position by allowing “cover to maternal birth injuries which share similar features to injuries already covered” under the scheme.181
The Amendments are as follows:
Section 25(1)(f) has been inserted into the Act to extend the definition of “accident” to include: 182
178 Accident Compensation Act 2001, s 25
179 Harrild v Director of Proceedings above n 121, at [113] per McGrath J.
180 Accident Compensation Act 2001, s 33.
181 Ministry of Business, Innovation and Employment Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill: Departmental Report to the Education and Workforce Committee (9 May 2022) at [2] [MBIE Departmental Report].
182 Inserted by Clause 6 of the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Act 2022 into The Accident Compensation Act 2001.
An application of a force or resistance internal to the human body at any time from the onset of labour to the completion of delivery that results in an injury described in Schedule 3A to a person who gives birth.
Schedule 3A has been inserted, providing an exhaustive list of the maternal birth injuries covered by the scheme.183
Section 25A has also been inserted, requiring a formal review of the new Schedule 3A, three years post-commencement, to determine whether any amendments are needed.184
(a) R ationale for the 2022 Amendments
These amendments arose after ACC’s internal analysis revealed gender bias against women in the scheme.185 Subsequently, the Government began exploring birth injury cover, which led to the introduction of an initial amendment Bill, which was introduced and passed on its first reading. The Select Committee process then began, and submissions were received. The Select Committee recommendations included keeping the Schedule 3A list approach to cover, including additional injuries to the list, and inserting a mechanism for updating the list.186 The Bill was then enacted, reflecting these changes.
Both the 2022 Ministry of Business, Innovation and Employment (MBIE) Departmental Report (2022 Report)187 and the 2022 MBIE Additional Information Document on the Bill (Additional Information Document)188 provided advice to the Education and Workforce Select Committee while the Bill was with Select Committee. The 2022 Report notes the intent of the amendments is “for maternal birth injuries to be treated the same as other injuries” in the scheme, to reduce the gender imbalance of the scheme.189
183 Inserted by Schedule 2 of the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Act 2022 into The Accident Compensation Act 2001; See appendix A for a full list of the injuries covered under the scheme; see Appendix A for a reproduction of Schedule 3A.
184 Inserted by section 7 of the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Act 2022 into The Accident Compensation Act 2001.
185 Powell “ACC's delivery to priority populations: Part 1 – Women” above n 3, at 2-5.
186 Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill) (103—2) (select committee report) at 2-3.
187 MBIE Departmental Report, above n 181.
188 Ministry of Business, Innovation and Employment Additional information to the Education and Workforce Select Committee on the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill (16 May 2022) [MBIE Additional Information Document].
189 MBIE Departmental Report, above n 181, at [2].
(b) A dditional information on the 2022 AmendmentsThe Additional Information Document provides information surrounding the scope of cover of the 2022 Amendments, stating that “strains and sprains” are not included in Schedule 3A as coverable injuries.190 MBIE note including the term would allow cover for the “normal and expected changes from pregnancy and childbirth,” 191 extending cover to all births. They express this is not the intention of the amendments; rather, it is only to cover unexpected injuries arising from childbirth. 192 Further, MBIE addresses that while “strains and sprains” sustained on the rugby field are covered, it does not mean “strains and sprains” sustained during birth should be covered. They note this is because not every game of rugby will result in a “strain or sprain,” but because every birth will, cover should not be provided. 193
B. Analysis of Birth Injury Cover prior to the Amendments
This part will provide a worldview analysis of ACC coverage of birth injuries prior to the 2022 Amendments.
Part of the reason ACC has a limited definition of “accident” is due to the 1992 reforms, which narrowed the scope of cover.194 The external force requirement was inserted to strike a boundary between accidents, which the scheme sought to cover, and illnesses, which the scheme did not seek to cover, as they were seen to occur due to inherent characteristics rather than external forces.195 Consequently, any accidents wrought by internal forces, which also included birth injuries, were excluded from cover. Before 1992, the scheme covered “personal injury by accident.”196 This definition of personal injury was non-exhaustive and did not yet include the external force requirement. As I am not aware of any case law on birth injuries at the time, this analysis will be limited to denial of cover post 1992.
For our purposes, we will analyse why birth injuries were not captured in the definition of accident. Birth injuries are of a similar character to other injuries covered under the ACA and are also caused by accidents in a similar sense to other injuries. The concept of “accident” in
190 MBIE Additional Information Document, above n 188, at 6.
191 At 6.
192 At 6.
193 At 6.
194 See Simon Connell “Community Insurance Versus Compulsory Insurance: Competing Paradigms of No- Fault Accident Compensation in New Zealand” (2019) 39(3) Legal Studies 499 at 512.
195 WF Birch, above n 135, at 31.
196 Accident Compensation Amendment Act 1974, s 2(1).
the scheme extends to unintended consequences of intended acts, for example, a broken arm sustained during a rugby game. The broken arm will be covered as it is an unintended consequence, despite intentional participation in rugby. While birth may be the result of intentional actions, its unintended injuries are not covered. Under what basis are birth injuries excluded?
Applying the feminist lens reveals operation of the traditional worldview. The external force requirement better captures injuries that occur to men, than injuries that occur to women as such a definition cannot comprehend birth injuries that occur from internal forces. Thus, the exclusion of birth injuries results from the terms accident and injury being defined according to the default male body. As men do not experience childbirth, such injuries have historically not been covered by the ACC scheme. With masculine reasoning entrenched in the law, birth injuries were othered, treated as abnormal and closer to illnesses rather than regular accidents, despite many injuries carrying similar characteristics to other covered injuries - especially those incurred in sporting activities.
Denying cover for birth injuries reinforces gender roles as women are expected to endure the consequences of birth due to their natural role as child-bearers. Thus, birth is not seen as carrying any harm. Rather, it is viewed as a net positive outcome, and as such, recognition of harm would be seen to diminish the integrity of childbirth. Differential treatment on this basis others women’s experiences and results in a narrow conception of harm, as women’s birth injuries remain unrecognised.
C. Analysis of Birth Injury Cover under the Amendments
This part will provide a worldview analysis of ACC coverage of birth injuries under the amendments. It will analyse inclusion of birth injuries under the scheme in substance and the method by which birth injuries are included.
Given the historical lack of cover for maternal birth injuries, the new cover provision reflects alignment with the progressive worldview. Birth injuries align with the concept of accident if that concept is not exclusionary of women’s experiences, as they are unintended consequences
of intended actions. Thus, allowing cover for birth injuries operates from an inclusive frame of reference as cover is not limited to accidents and injuries that commonly occur to the male body.
Recognising birth injuries as coverable injuries limits reliance on gender roles to exclude cover. Child-bearing is not seen as an injury-less role by virtue of it being women’s natural role, nor are women expected to bear these harms due to this role. Rather, birth injuries are recognised and compensated and, thus, receive similar treatment to similar covered injuries. This broader conception of cover reduces gender imbalance in the ACC scheme, especially as it has resulted in 5000 birthing parents receiving cover for their birth injuries since the amendments were enacted.197 This makes the scheme more equitable and accessible for women. In substance, including birth injuries aligns with the progressive worldview as it reduces the number of sexist outcomes under the scheme.
While the inclusion of birth injuries reflects a milestone and is, in substance, in alignment with the progressive worldview, a closer analysis reveals the underpinnings of the traditional worldview in the method by which cover for birth injuries has been implemented in the Act.198
Cover is only available for birth injuries included in the exhaustive list set out in Schedule 3A of the ACA. This means not all birth injuries are covered, just those included in the list. My particular focus in this section will be this list approach adopted by Parliament as a method of including birth injuries.
(a) J ustifications for the list approach
It is necessary to question why the list approach has been adopted for birth injuries, as the absence of clear justification indicates a worldview has driven decision-making.
197 Anusha Bradley “Big jump in birthing injuries being covered by ACC” (8 September 2023) RNZ < www.rnz.co.nz/>; See also Government’s prediction that these amendments were predicted to help 28,000 birthing parents per year, Carmel Sepuloni “Government delivers ACC change to support 28,000 parents” (press release, 27 September 2022).
198 Accident Compensation Act 2001.
While Schedule 2 of the ACA sets out a list of covered occupational diseases, which provides an alternative pathway to cover for certain work-related gradual process, disease, or infection injuries, it is unlike the birth injuries list. Occupational diseases excluded from the list are still eligible for cover under the broader test in section 30,199 whereas covered birth injuries are confined to the exhaustive list in Schedule 3A. Thus, a list of injuries is novel as it is not provided for any other type of accident covered by the scheme.200 For example, no list of acceptable injuries is provided for injuries sustained on the rugby field, which raises the question on what basis do birth injuries receive special treatment?
MBIE justifies using the list approach by stating that as this is the first time the Act covers injuries caused by internal forces, a unique approach is required.201 However, as Simon Connell and Dawn Duncan note, the Act was amended202 to include, under the definition of “accident,” cover for twisting injuries and injuries suffered while making a sudden movement to avoid an external force. 203 Injuries arising from these events are caused by internal forces acting within the body, yet no list is provided to exhaustively set out which injuries are covered.
Many submissions suggested the addition of labour and birth to the definition of accident rather than taking a list approach.204 Responding to this, MBIE notes the list approach is required:205
...because childbirth is one part of a complex but normal health process, and because there are many other internal forces acting in the human body, several exclusions would need to be included to clearly maintain the boundary between cover for accidents and other illnesses/health conditions.
199 Accident Compensation Act 2001, s 30(2).
200 Accident Compensation Act 2001, s 25.
201 MBIE Departmental Report, above n 181, at [22]; Accident Compensation Act 2001.
202 Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005, s 10.
203 Accident Compensation Act 2001, ss 25 (a)(iii) and (ii); Simon Connell and Dawn Duncan “Submission to the Education and Workforce Committee on the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill 2022” at [15].
204 MBIE Departmental Report, above n 181, at [20].
205 At [26].
However, legislative machinery excluding injuries consequent to illness and underlying health conditions exists. As Connell and Duncan note, the requirement that the injury needs to be “caused by an accident”206 and the exclusions carved into the definition of “personal injury” (such as for injuries “caused wholly or substantially by a gradual process, disease, or infection”)207 are sufficient controls to prevent, “injuries that do not belong in an accident compensation scheme getting cover.”208 Further, no list was provided when twisting injuries were included, despite the fact that twisting motions could reveal pre-existing health conditions precluded from cover.
MBIE also note that covering all birth injuries would increase levels of clinical judgement to determine cover, which could cause inconsistency in interpretation. 209 However, some level of clinical judgment is often required when determining whether injuries are covered,210 and as Connell and Duncan identify, “some level of ambiguity is unavoidable when new statutory language is introduced.”211 Moreover, no list was provided when covering twisting injuries, which also increased the level of clinical judgement in determining whether the injury was caused by the twisting motion or underlying uncovered health conditions.
These justifications for the list approach do not seem to be based on clear policy reasons. The lack of justification for the novel treatment for birth injuries indicates a worldview has driven the implementation of a list approach.
An indication of the worldview subscribed to in implementing the list approach can be found in MBIE’s Additional Information Document.212 Identifying the worldview driving the
206 Accident Compensation Act 2001, s 20(2)(a).
207 Accident Compensation Act 2001, s 26(2); See also s 26(4)(a) excluding cover for injuries caused wholly or substantially by the ageing process; s 25(3) the definition of accident provides the fact that a person has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident.
208 Connell and Duncan, above n 203, at [15].
209 MBIE Departmental Report, above n 181, at [21].
210 Accident Compensation Act 2001, s 32(1)(b).
211 Connell and Duncan, above n 203, at [16].
212 MBIE Additional Information Document, above n 188.
exclusion of “strains and sprains” sustained during birth from cover can shed light on the worldview behind the list approach.
(a) A re expected injuries covered?
MBIE’s reasoning that “strains and sprains” from birth are not covered because they are expected,213 appears to contradict ACC’s approach to covering injuries. The concept of accident extends to unintended consequences of intended acts, with the unintended consequences being covered by the scheme. Unintended consequences are not equivalent to unexpected consequences; thus, suffering expected consequences should not disqualify an injury from cover, where it is unintended. For example, a concussion is a common injury in boxing and, therefore, can often be expected.214 Yet, as it is an unintended consequence, it is still covered. Whereas “strains and sprains” from birth are disqualified from cover for being expected, despite being the unintended consequence of an intended act. Such differential treatment for birth injuries indicates the operation of a worldview in this decision making.
Similarly, to differentiate treatment for “strains and sprains” from birth because they occur at every birth215 is also inconsistent with ACC’s concept of accident. Cover for rugby injuries does not hinge on there not being an injury at every game; the determining factor is whether it is an unintended consequence. Despite “strains and sprains” from birth being unintended consequences, they are disqualified from cover for regular occurrence. Thus, such differential treatment suggests the operation of a worldview.
(b) “ Strains and sprains” as normal consequences of birth
MBIE denies cover for “strains and sprains,” as they stated to be a normal part of the birthing process.216 ‘Normal’ appears to have the same meaning as ‘natural’ used in natural process reasoning. Thus, MBIE seems to use natural process reasoning to argue that because “strains and sprains” naturally/ normally occur to women, they are not considered an injury. This
213 At 6.
214Charles Bernick and others “Concussion occurrence and recognition in professional boxing and MMA matches: toward a concussion protocol in combat sports” (2021) 49(4) The Physician and Sportsmedicine 469 at 469.
215 No research is cited to support the claim that a strain or sprain occurs at every birth. This author has been unable to locate research regarding the incidence of maternal strains and sprains incurred during labour and delivery. While not the only cause, lack of research in this field reflects sexism in research conducted in women’s health relative to men’s health. See Rosaly Correa-de-Araujo “"Serious gaps: how the lack of sex/gender-based research impairs health” (2006) 15(10) Journal of Women’s Heath 1116.
216 MBIE Additional Information Document, above n 188, At 6.
implies that natural occurrences during childbirth are mutually exclusive with a finding of harm. The traditional worldview regards the concept of injury as an unnatural consequence and deems childbirth to be a net-positive outcome as it leads to the reproduction of human life. Thus, considering the natural/normal consequences of childbirth, such as “strains and sprains,” an injury would compromise the integrity of childbirth.
MBIE’s statement appears to contradict Allenby, where it was held that pregnancy being a natural process was irrelevant when determining whether pregnancy could constitute a personal injury.217 It could be argued that rejecting the natural process argument is only relevant where women have specifically chosen not to get pregnant and consequently fall pregnant due to medical misadventure or rape. However, I would argue that the proposition Allenby stands for is that rejecting the natural process argument does not turn on women not intending to fall pregnant. Rather, it is relevant to all decisions regarding reproduction, as the consequences of reproduction cannot be discounted for pregnancy and birth being biological functions. Thus, using natural process reasoning here to discount the normal consequences of birth indicates alignment with the traditional worldview.
Moreover, this reasoning reinforces gender roles as women are expected to endure the natural/normal consequences of childbirth, as child-bearing is seen as their natural role. This results in a limited conception of harm as the natural consequences of birth, such as “sprains and strains,” are excluded from cover, and consequently, women’s experiences are othered.
Overall, we can observe alignment with the traditional worldview in the decision to exclude cover for ‘strains and sprains’ sustained in childbirth.
By identifying the operation of the traditional worldview in the decision to exclude cover for “strains and sprains” suffered during birth, we can reason that use of the list approach also aligns with the traditional worldview, given the lack of policy justifications.
217 Allenby v H, above n 131, at [89] per Tipping J.
Prior to the amendments, the definition of “accident” defaulted to measuring accidents against the male body as the external force requirement better captured male injuries compared to female injuries.218 While the definition of “accident” was amended to include cover for specified birth injuries,219 use of the list approach did not remove the masculinity inherent in the definition, rather, it sets women’s injuries apart from all other injuries, as no other injury has a list approach to cover. Such a novel and restrictive approach to women’s injuries subordinates women’s birth injuries relative to other injuries covered by the scheme.
Consequently, a hierarchy of accidents forms; injuries resulting from accidents that meet the male definition receive cover, and injuries resulting from accidents that do not meet the male definition, such as birth injuries, are only covered if specified on a list. Thus, the definition has not changed to be more inclusive of women’s injuries. The list approach increases the divide between the treatment of male and female injuries, and beyond othering, it treats birth injuries as abnormal and more similar to illnesses than regular accidents. Further, excluding some birth injuries by virtue of them naturally occurring reflects alignment with the traditional worldview as it lacks appreciation of natural processes and harms coexisting.
Moreover, while twisting injuries do not meet the external force requirement, they are not subject to a list for cover. This indicates differential treatment based on gender, as men experience twisting injuries, but do not experience childbirth. Thus, distinct treatment without justification reinforces gender roles. Women are expected to endure birth injuries excluded from the list, as child-bearing is seen as women’s natural role. Consequently, this results in a limited conception of harm, as all birth injuries are not recognised as injuries. Thus, while including birth injuries under the 2022 Amendments reflects alignment with the progressive worldview in substance, the list approach used to implement cover for birth injuries aligns with the traditional worldview.
218 Accident Compensation Act 2001, s 25.
219 Accident Compensation Act 2001, s 25(1)(f).
D. Isolating the Worldviews
Having explored the legislative machinery of birth injuries, I will now summarise the features of the traditional and progressive worldviews illuminated through the feminist framework.
Features revealed include “accident” being defined and interpreted through a masculine perspective, a narrow conception of harm, utilisation of natural process reasoning, and strong conceptions of gender roles.
(a) A ccident defined and interpreted through a masculine perspective
Prior to the 2022 amendments, the definition of “accident” required an injury to arise from a force external to the body.220 This definition appears to be based on the default male body as the external force requirement better captures injuries that occur to men, than injuries that occur to women. This requirement excluded birth injuries from cover as they were caused by the internal force of a foetus. As men do not experience pregnancy and childbirth, such injuries were not considered nor covered. Masculine definitions cannot cover female experiences that do not meet the norm set by the male standard.
Under the 2022 Amendments, using a list approach solely for birth injuries compared to other injuries allows masculine reasoning to remain entrenched in the law. As birth injuries do not meet the male definition of accident, a separate approach is taken to provide additional cover rather than amending the definition to include all birth injuries. Such distinct treatment for birth injuries indicates masculine definitions of “accident” are still in operation.
Further, the concept of ‘accident,’ as unintended consequences arising from intended acts, is capable of covering birth injuries. However, masculine reasoning adjusts the interpretation of ‘accident’ to exclude birth injuries that are expected or normally occur in childbirth, resulting in distinct treatment for women’s injuries that others women’s experiences.
220 Accident Compensation Act 2001, s 25.
(b) N arrow conception of harmThe masculine definition of “accident” was unable to recognise all birth injuries prior to the amendments, and birth injuries unspecified in Schedule 3A under the amendments, 221 as harms to women. Both instances reflect a narrow conception of harm, as they do not recognise the harms that arise during childbirth as injuries despite being of similar character to other covered injuries caused by different accidents.
(c) U tilisation of natural process reasoning
Natural process reasoning was utilised to argue that as some injuries such as “strains and sprains” were naturally occurring during childbirth and normally part of the maternity process, such injuries were not caused by accident and should not be covered under the scheme. Underpinning this, is the idea that because childbirth “naturally” occurs to women, to consider its natural/ normal physical impacts an injury would be unnatural. The traditional worldview deems injuries to be unnatural consequences and regards childbirth to be a net positive outcome due to its natural occurrence in the reproduction of human life. Thus, considering the natural consequences of childbirth as an injury would compromise the integrity of childbirth.
(d) S trong conceptions of gender roles
Both prior to and under the 2022 amendments, child-bearing was seen to be a women’s role. Consequently, all birth injuries prior to the amendments, and excluded birth injuries under the amendments were not recognised as harms. Rather, women were expected to bear the harms of childbirth. Excluding cover on the basis of gender roles leads to differential treatment for women’s injuries compared to similar covered injuries borne by other accidents.
(e) C onsequences of the traditional worldview
Operation of the traditional worldview, both before and after the amendments, others women’s experiences by failing to recognise all birth injuries as injuries. This increases the disparity in the treatment of men and women’s injuries and effectively treats birth injuries as abnormal and closer to illnesses than male-defined accidents. As such, women’s injuries are subordinated to other covered injuries under the scheme, despite being similar in nature. Consequently, alignment with the traditional worldview results in women receiving less cover than men under the ACA contributing to gender biased outcomes in the ACC scheme.
221 Accident Compensation Act 2001.
Features of the progressive worldview that were revealed include operating from an inclusive frame of reference, a broad conception of harm, and limiting the impact of gender roles.
(a) O perating from an inclusive framework
Including into the definition of “accident” applications of force or resistance internal to the human body during labour and delivery,222 operates from an inclusive frame of reference as it recognises that injuries occur to women during birth. This reflects a step away from the traditional approach, which seeks to cover injuries that commonly occur to the male body, rather, here, the change specifically includes more women under the scheme.
(b) B road conception of harm
Operating from an inclusive framework leads to a broader conception of harm as specified birth injuries are now recognised as injuries and receive cover under the scheme compared to their blanket exclusion before the reform.
(c) L imiting the impact of gender roles
Recognising that injuries occur during childbirth acknowledges that women should not have to endure all consequences of birth by virtue of child-bearing being their natural role. This limits differential treatment on the basis of gender at some level.
(d) C onsequences of the progressive worldview
In substance, including birth injuries under the scheme recognises women’s experiences of the injuries they may face in childbirth and decreases the breadth of disparity between the treatment of men’s and women’s injuries under the scheme. Thus, gender roles are displaced, and the scheme is more inclusive, as more women now receive cover, increasing the number of outcomes achieving gender equality.
222 Accident Compensation Act 2001, s 25(1)(f).
V. Utility of Feminist Framework, the Value in Identifying Worldviews, and Steps for Change
This Chapter discusses the utility of the feminist framework and will explore the value in identifying the competing worldviews driving decisions regarding women’s bodies in the ACC scheme. It will also illustrate what changes can be made to the contexts of pregnancy and birth to increase alignment with the progressive worldview, if the progressive worldview is seen as desirable.
A. Utility of the Feminist Framework
A feminist approach is powerful as not only does it expose gender bias, which is explicitly present, it also seeks to reveal gender bias implicitly concealed within the law. 223 Like gender bias, the operation of worldviews is not always obvious at first glance and is often masked by apparent objectivity. 224 As the feminist approach looks beyond the objective neutrality of texts and questions assumptions to reveal the underlying sexist notions underpinning ACC law, it was able to illuminate both the operation of worldviews and gender bias in ACC law.
Each of the critiques employed was able to identify overt and covert gender bias and worldviews.
a) The “default male” critique was utilised when determining whether definitions and interpretations of “accident” and “injury” defaulted to the male body when measuring harm. This revealed utilisation of masculine reasoning that resulted in narrow conceptions of harm that excluded women’s experiences;
b) The “women as other” critique helped to identify when women’s experiences were othered in the law. This was exposed when gender roles and natural process reasoning were utilised to other women through differential treatment of women’s injuries; and
223 Barnett, above n 55, at 7.
224 For example: when it was revealed the traditional worldview was the driving force behind the majority’s seemingly objective statement that the “natural and ordinary meaning” of personal injury and physical injury did not include pregnancy in ACC v D (CA), above n 40, at [55].
This feminist framework was valuable for this dissertation as it enabled a deeper analysis that went beyond the surface, illuminating the features of the worldviews present in the contexts of pregnancy and birth. In identifying these features, the feminist framework allowed this dissertation to paint a broader picture of the worldviews that generally drive decision-making about women’s bodies under the ACC scheme.
Further, the feminist framework usefully shed light on the dynamic operation of worldviews in the context of pregnancy and birth, as it revealed both the presence and absence of gender bias. As such, it revealed that both the progressive and traditional worldviews could be reasoned from when answering boundary questions.
Finally, it is necessary to recognise that utilisation of this feminist framework is valuable whether it leads to change or not, “simply for the fact it is important to acknowledge the biases of our legal system.”225
B. The Value in Identifying the Competing Worldviews
Identifying the competing worldviews that drive decision making, both in the context of pregnancy and birth and under the ACC scheme generally, is valuable for a number of reasons.
Firstly, identifying the worldviews present in the context of pregnancy and birth is not only helpful in what they reveal on their own, but also in what they reveal together. On their own, both contexts reveal that alignment with the traditional worldview generally leads to outcomes that differentiate treatment based on gender, resulting in gender biased outcomes, and alignment with the progressive worldview does not differentiate treatment based on gender, leading to outcomes of gender equality.
225 Littleton, above n 66, at 1321.
When putting both together, the analysis reveals almost identical features of the traditional and progressive worldviews were present in both contexts. This reflects a pattern of reasoning towards women’s bodies under the scheme that results in certain outcomes depending on what worldview is aligned with. Given this pattern of reasoning, this dissertation argues there is potential that these worldviews are generally underlying withing the scheme when decisions regarding women’s bodies are made. As such, the worldviews are not only are a mechanism to explain gender biased outcomes in the context of birth and pregnancy, but can also be used to explain gender bias more generally in decisions regarding women’s bodies in the scheme. 226 However, further research, outside the scope of this dissertation, is required to determine this.
This analysis has also shown that alignment with a worldview can change over time. For example, the traditional worldview initially drove the decision that pregnancy was not a personal injury. However, later alignment with the progressive worldview has changed this outcome and has gradually driven pregnancy to be seen as a coverable personal injury.
This further revealed that alignment with the progressive worldview in one context does not necessarily mean there will be automatic alignment with the progressive worldview in another. For example, alignment with the progressive worldview in the context of pregnancy did not result in widespread recognition of women’s experiences in other contexts, such as birth injuries. Thus, this analysis reveals the traditional worldview is still operative and continues to influence aspects of ACC law. For example, the traditional worldview has consistently othered birth injuries compared to other covered injuries through differential treatment based on gender.
By identifying these worldviews in ACC law, we can see how attitudes toward pregnancy and birth have gradually changed or remained consistent over time. We can also identify what impact this has had on ACC outcomes.
226 See, for example the context of providing compensation for lost earnings under the scheme post wrongful conception. The traditional and progressive worldview can be found to drive decision making on whether compensation is available or not. See XY v ACC above n 95 at 381, for an example of the traditional worldview; see also J v ACC [2017] NZCA 441 at [51]- [70] where Kos P’s dissent reflects strong alignment with the progressive worldview.
Further, this analysis revealed how the contest of worldviews is often present in boundary cases, as was seen when determining whether to provide cover for pregnancy and birth injuries. Unconscious alignment was visible in Allenby, where the absence of any evidential foundation indicated the traditional worldview had compelled the majority and Tipping J’s conclusion to exclude cover for accidental pregnancy.227 Similarly, in the context of birth injuries, given the lack of justifiable policy reasoning, unconscious alignment with the traditional worldview was observed to have resulted in the adoption of the list approach. In some instances, however, alignment with a worldview in the absence of clear policy reasoning was more overt, as was evident by Jeffries J’s statements XY v ACC.228
These examples illustrate how alignment with worldviews often occurs in boundary cases, either consciously or unconsciously, to justify decision-making where it is difficult to identify justifiable policy reasoning. Further, this analysis revealed that worldviews can unconsciously drive decision making, and illuminated instances where this occurred.
Moreover, there can be dual operation of worldviews in decision-making as the operation of worldviews are not mutually exclusive, instead, they are dynamic. This was evident in the context of birth injuries. While providing cover for listed birth injuries represented alignment with the progressive worldview, implementation of the list approach aligned with the traditional worldview as it further entrenched distinct treatment for women’s injuries. This was also present in Allenby; while recognising pregnancy as a personal injury aligned with the progressive worldview, the majority and Tipping J’s statements towards cover for accidental pregnancy were rooted in the traditional worldview. Both contexts reveal how operation of both worldviews are dynamic rather than being black and white, and how lawmakers can reason from both worldviews in decision-making.
227 See page 36 of this dissertation.
228 XY v ACC above n 95 at 380.
This analysis has shown what outcomes arise when ACC law aligns with the progressive and traditional worldviews in decisions regarding women’s bodies. This knowledge can help inform lawmakers when making future decisions about women’s bodies as they can identify which outcomes are desirable and, consequently, which worldview is desirable to align with. For example, if outcomes with differential treatment of women (which earlier I have characterised as gender bias) are seen as acceptable or even desirable, then the traditional worldview can be pursued. If, rather, the goal is to have outcomes that remove gender bias from the scheme, then the progressive worldview can be aligned with. This awareness also enables lawmakers to avoid reliance on features of a worldview that is seen as undesirable.
Importantly, awareness of the existence of worldviews and their features in ACC law, reduces unconscious reliance on worldviews to justify decision-making. This is valuable as it will require lawmakers to explicitly identify justifications for their conclusions. This increases clarity and accessibility of the law, which are fundamental attributes of the rule of law.229
Based on the reasons above, identification of the competing worldviews is valuable for its ability to explain outcomes of gender bias in the scheme, its ability to inform future decision making, and to enable understanding of the dynamic operation of the worldviews.
C. Changes to the ACC Scheme under the Progressive Worldview
This part illustrates what changes can be made to the contexts of pregnancy and birth to increase alignment with the progressive worldview, if the progressive worldview is seen as desirable. This part does not seek to provide a normative statement on which worldview is better, rather, it is an illustrative exercise.
229 Robert Summers “Principles of the Rule of Law” (1998) 74 Notre Dame L. Rev. 1691 at 1704; see also Jeremy Waldron “Clarity, Thoughtfulness, and the Rule of Law” in Geert Keil and Ralf Poscher (eds) Vagueness and Law: philosophical and Legal Perspectives (Oxford University Press, Oxford, 2016) 317.
Alignment with the progressive worldview exists in considering pregnancy post wrongful conception a personal injury. Thus, recommendations are limited to the treatment of accidental pregnancy. As aforementioned, the traditional worldview drove the majority and Tipping J’s statement as to Parliament’s intent to exclude accidental pregnancies from cover.
Alignment with the progressive worldview does not require an answer that all accidental pregnancies have cover. However, it requires a justifiable basis on which to exclude cover as the consequence of exclusion limits the availability of cover for many women, consequently othering their experiences.
Elias CJ’s approach to accidental pregnancy aligned with the progressive worldview. She refrained from commenting on whether accidental pregnancy was covered, as there was no evidential basis to support a conclusion. To further align with the progressive worldview, decisions on whether accidental pregnancy should be covered under the scheme should be left with Parliament as the decision involves spending public money and choosing between competing policy objectives.
While including birth injuries aligns with the progressive worldview in substance, implementation of cover through the list approach aligns with the traditional worldview. To further align with the progressive worldview, general cover for birth injuries could be provided by removing the list approach to cover and providing cover for all birth injuries.
Treating birth injuries in the same way as similar covered injuries, prevents othering birth injuries and treating them as abnormal compared to male experiences. By removing the exclusion for birth injuries normally incurred in birth, women are not asked to endure birth injuries by virtue of their child-bearing role. This eliminates reliance on gender roles to differentiate treatment. Such inclusive reasoning prevents entrenching sexism in the law as women’s experiences are recognised and treated as coverable injuries. This removes a male definition of accident and, thus, improves gender equality in the scheme.
Conclusion
This dissertation has developed the idea that the traditional and progressive worldviews drive decision-making regarding women’s bodies in the ACC scheme to result in gender biased outcomes and outcomes of gender equality. Analysing pregnancy as personal injury and cover for birth injuries under a feminist framework revealed four features of both the traditional and progressive worldview towards decision making about women’s bodies in the scheme.
The features of the traditional worldview included ‘accident’ and ‘injury’ being defined according to the default male body, leading to a narrow conception of harm as masculine interpretations failed to recognise female experiences. Natural process reasoning was also utilised to argue that natural processes that occur (usually to women) could not be seen as accidents or injuries as that would erode the integrity of the biological process. This resulted in strong conceptions of gender roles, as women were expected to endure harms seen as part of their natural roles of homemaker and child-bearer. Overall, women received differential treatment on the basis of gender, resulting in gender biased outcomes.
The features of the progressive worldview included operating from an inclusive framework that recognised harms sustained to all genders. This rejected natural process reasoning and allowed for a broad conception of harm, recognising both physical and intangible harm. Gender roles were eliminated as women did not receive differential treatment based on their traditional role as child-bearers. Thus resulting in outcomes achieving gender equality.
Identification of these competing worldviews is valuable as it explains why gender biased outcomes exist in ACC law, it reveals the dynamic operation of worldviews in ACC law, and it has the ability to inform future decision making.
While this dissertation does not normatively argue which worldview is more desirable and why, it is this author's preference for future ACC outcomes to align with the progressive worldview. This dissertation provides recommendations to increase alignment with the progressive worldview in the contexts of birth and pregnancy. However, further change to the ACC scheme is required to fully recognise women’s experiences and to avoid gender biased outcomes in ACC law. Only when this is achieved, will ACC be able to realise its vision of benefiting every New Zealander.
Appendix A
Schedule 3A: Maternal birth injuries Birth injuries
Anterior wall prolapse, posterior wall prolapse, or uterine prolapse Coccyx fracture or dislocationLevator avulsion
Obstetric anal sphincter injury tears or tears to the perineum, labia, vagina, vulva, clitoris, cervix, rectum, anus, or urethra
Obstetric fistula (including vesicovaginal, colovaginal, and ureterovaginal) Obstetric haematoma of pelvis
Post-partum uterine inversion Pubic ramus fracture Pudendal neuropathy Ruptured uterus during labour
Symphysis pubis capsule or ligament tear
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Kelly Stitely “A Woman of Her Word A Feminist analysis of contract interpretation principles” (LLB (Hons) Dissertation, University of Otago, 2021).
H. Internet resources
Anusha Bradley “Women struggle for treatment as ACC changes policy on perineal tears” (31 March 2021) RNZ < www.rnz.co.nz/>.
Anusha Bradley “ACC biased against women, Māori and Pasifika - agency's own analysis shows” (21 June 2021) RNZ < www.rnz.co.nz/>.
Anusha Bradley “Big jump in birthing injuries being covered by ACC” (8 September 2023) RNZ < www.rnz.co.nz/>.
Simon Connell “No good reason to limit ACC birth injury cover” (6 October 2021) Newsroom <www.newsroom.co.nz>
Simon Connell “ACC birth injury changes cause for pause” (29 September 2022) Newsroom <www.newsroom.co.nz>
Belinda Feek, “Chief Justice's Report; Behind the bench - a revealing look at NZ's judges” (4 March 2022) New Zealand Herald < www.nzherald.co.nz/>.
Sonia Sly “Rights and Ownership over the Female Body” (14 October 2018) RNZ
Accident Compensation Corporation “Our Vision” <www.acc.co.nz>.
I. Speeches
Helen Winkelmann “What Right Do We Have? Securing Judicial Legitimacy in Changing Times” (Dame Silvia Cartwright Address, 17 October 2019).
J. Other resources
Oxford Dictionary (online at 1 September 2023).
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