ACC loses court battle over asbestos cancer victim Deanna Trevarthen

Deanna Trevarthen died in 2016 from mesothelioma, a lung cancer caused by asbestos fibres. Photo / Jason Oxenham

By RNZ

ACC has lost a long-running court battle over a woman who died from cancer.

Deanna Trevarthen died in 2016 from mesothelioma, a lung cancer caused by asbestos fibres.

Before her death, she pushed to get ACC cover for financial assistance, but was rejected because she was not exposed to asbestos at work.

The Court of Appeal, in a unanimous decision, said her condition was a personal injury for ACC cover.

Dismissing the ACC's case, the Court of Appeal ruled that the exclusion provision of the Accident Compensation Act 2001, which states cover is not available for personal injuries caused wholly or substantially by a disease, did not apply.

It found the operative cause of the personal injury was an accident - the inhalation of asbestos fibres. It ruled that ACC's argument that the disease is what caused the personal injury drew an artificial distinction between a disease and its physical manifestations.

Trevarthen's claim for cover had been declined by ACC on 11 January 2016 because of its gradual onset, which ACC stated showed her mesothelioma was not a personal injury caused by a specific accident on a specific occasion. Rather, it argued, it was a gradual process disease that had not arisen from work exposure.

Deanna Trevarthen undergoing chemotherapy treatment for mesothelioma in 2015. Photo / Supplied

Trevarthen had requested ACC to reconsider her claim for cover on the basis that the disease had arisen from the inhalation of a foreign object on a specific occasion.

The review accepted that mesothelioma caused by asbestos inhalation would meet the statutory definition of personal injury, rejecting ACC's argument that the exclusion of personal injuries caused wholly or substantially by a gradual process, disease or infection applied.

"If the evidence establishes that the mesothelioma was caused by the inhalation of asbestos fibres then the mesothelioma must be viewed as a personal injury, in and of itself. The cause of the mesothelioma would then not be due to an idiopathic disease, but rather due to an external, non-disease related agent," the review decision stated.