The Court of Appeal has made a provisional finding that a woman's continued pregnancy following the failure of health professionals to diagnose spina bifida, and "the consequential inability of the mother to implement her choice to terminate the pregnancy", may constitute a personal injury under the Accident Compensation Act 2001.
The Court followed Blanchard J's reasoning in Allenby v H (Supreme Court), in considering whether a continued pregnancy after misdiagnosis was a "personal injury" and a "treatment injury" under the Act. The Court was satisfied that the "continuation of the pregnancy following the incorrect diagnosis and the consequential inability of the mother to implement her choice to terminate the pregnancy can constitute a physical injury suffered by the mother for the purpose of the definition of "personal injury". The Court was satisfied that there was "treatment" for the purpose of the Act and that appellant would have terminated the pregnancy had there been a correct diagnosis. However, the Court did not have enough evidence to determine whether the appellant would have been able to obtain a termination. The Court referred the matter back to the District Court for consideration but stated that "if the appellant is able to establish on the balance of probabilities that she would have been able to obtain a termination, she would be entitled to cover under the Act on the basis that she has suffered personal injury that is a treatment injury". C v Accident Compensation Corporation  NZCA 590.