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Compensation for |
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Compensation for |
Abstract
This paper describes the overall no fault accident compensation scheme developed in New Zealand, and sets out the current provisions of the Accident Rehabilitation and Compensation Insurance Act 1992 for the compensation of mental trauma injuries. It draws attention to the abolition of lump sum compensation for injuries, and the exclusion of many mental trauma injury claims which were available under the previous Accident Compensation Act 1982 - both of which led to considerable public dissatisfaction, and brought lawyers back into the compensation process with damages claims for mental trauma injuries. The renewed interest of lawyers in litigation also led to an increase in exemplary/punitive damages claims. These matters are raised for the information of interested parties overseas as well as those closer to home in New Zealand.
If a injured person has cover under the Act then there can be no resort to the
New Zealand Courts for damages for the injury, as s14 of the Act bars
"proceedings for damages arising directly or indirectly out of personal injury
covered by this Act "
5. There is no problem with motor vehicle and work
accidents coming under the definition of the Act, because the vast majority
involve some form of forceful contact resulting in physical injuries
6 caused
by the accident
7
Unlike in some other overseas jurisdictions, there is no need for the injured
person to prove negligence and sue in the courts for damages, nor is there
need for the injured person to show that the injury happened through the use
of a motor vehicle or at work. Instead, an injured person simply comes under
the general accident compensation scheme if they have a personal injury that
has cover.
The NZ legislation therefore does not have either the lengthy and expensive
delays of civil litigation for damages, or the demarcation disputes that concern
other overseas no fault schemes such as those involving motor vehicles
8.
There are three main reasons for this upsurge in damages claims:
Mental Trauma Claims
Under the previous Accident Compensation Act 1982 the definition of
personal injury by accident included "the physical and mental consequences
of any such injury or of the accident" 12. Suffering mental consequences from
an accident (an unlooked for mishap or untoward event)
13 was therefore
sufficient to come under the Act. Such mental consequences ranged from
transient emotional trauma such as humiliation, through to unresolved grief
reactions and serious psychiatric injury.
Thus in ACC v E
14 an employee who had a nervous breakdown as a result
of being sent on a stressful management course, was held to have suffered
personal injury by accident, and in Cochrane v ACC
15 a mother who suffered mental trauma from watching her son die in hospital after he had been
tortured by a gang, was also held to have suffered personal injury by accident.
However under the 1992 Act such claims are excluded from the scheme
through the definitions of personal injury and mental injury
16.
Definitions
Type of mental trauma included
Therefore only mental trauma which is an outcome of physical injury is
included in the 1992 Act 18. Furthermore only very serious mental trauma is
included, because the phrase "mental injury" is defined in Section 3 as " a clinically significant behavioural, psychological or cognitive dysfunction"
19.
In ACC v E 20 a case decided under the 1982 Act, the Court of Appeal said:
"It would be a strange situation if cover under the Act for a person suffering serious mental consequences caused by an accident were to depend upon whether or not some physical injury however slight also is sustained. Further it would create major difficulties should it be necessary in particular cases to separate physical and mental injuries."
This "strange situation" is now the law under the 1992 Act.
Type of mental trauma excluded
Hence the upsurge in damages claims for mental trauma using the torts of
assault,battery and negligence. 22
Assault , Battery and Negligence
Damages claims for assault and some batteries also became possible after the
1992 Act, because mental trauma is not included in the Act, and physical
injury is not defined. Because of the separate definition of "mental injury", the
phrase "physical injury" cannot include any aspect of mental trauma. It must
be assumed that the legislation would not specify a restrictive definition of
mental injury if lesser mental trauma could simply be included under physical
injuries. For this purpose, physical injuries must mean more than mere
physical contact, and perhaps be in line with the Crimes Act 1961 definition
of "to injure" as meaning "to cause actual bodily harm"
23. For example, in R v McArthur
24, Mahon J held that an injury had to be something in the way
of broken bones, bruising, cuts or lacerations after being knocked down by a
car, rather than an injury where the victim was only shaken and dazed.
It could be argued that because of the different policy objectives, a different
interpretation should be given to injury in a criminal statute from that given
in a compensation statute. However, given the restricted nature of the
definition in s4, physical injuries have to be something more than mere hurt
and be in the nature of cuts , wounds, bruises and fractures. Thus, any
contact which did not result in these types of injuries would not be regarded
in law as a physical injury - and his has been confirmed in Bell v ARCIC
25
an Accident Compensation case in the District Court
26, where a cotton bud lodged in a ear was held not to be a personal injury even though medical
attention was required to remove it.
Thus if there is physical contact which is not a physical injury e.g. a
contemptuous touch, this also could be the subject of a damages claim.
If there was no damage suffered, there would certainly be a problem in suing
for negligence - but a claim in assault and battery, where no damage is required, could be an option
particularly if there was a deliberate attempt to strike the victim
27.
No Clear Decision On Mental Trauma
Despite the number of claims filed for damages for mental trauma, a decision
on the matter is still awaited from the Court of Appeal. Most of the claims have
survived strike out applications, and as yet only one mental trauma case has
proceeded to an adverse judgment by a High Court Judge. In that caseKingi
v Partridge
28, a claim for nervous shock by a family over the death of a
relative in hospital was struck out on the basis of the tests for proximity laid
down by the House of Lords in Alcock v Chief Constable of South Yorkshire
29. This Alcock case requires some locational and temporal proximity between
the claimant and the horrifying event, i.e. the claimant must hear or see the
incident which provokes the nervous shock. To be told of the event or to visit
the scene afterwards is not sufficient. However Lord Cooke when he was
President of the Court of Appeal, noted
30 that the Alcock decision was really
a policy decision, thus indicating that different tests for nervous shock might
be more appropriate for New Zealand to adopt. Therefore there are some
doubts whether the English tests for nervous shock will be adopted in New
Zealand by the Court of Appeal.
In two recent decisions a Master of the High Court preferred the more liberal
Australian approach to the requirement for proximity in nervous shock cases
to that of the more restrictive English approach
31. For example, in the Australian cases Andrews v Williams
32,Coates vGovernment Assurance Office of NSW
33
and Pham v Lawson
34, the fact that the claimant was not present at the
scene or its immediate aftermath but instead only learned about the incident
afterwards was not fatal to their claim. However Master Venning still
considered that a recognised mental or psychiatric illness was required for a
nervous shock claim to succeed at common law, and that lesser mental
trauma was insufficient. The issue has still to be resolved by the Court of
Appeal in New Zealand, and that Court has already shown a willingness to
award damages for mental distress .
The Court of Appeal rejected this argument and upheld the award. Lord Cooke
said :
"In my opinion, when the plaintiff has a cause of action for negligence, damages for distress , vexation, inconvenience and the like are recoverable in both tort and contract, at least if reasonably foreseeable consequences of the breach of duty . It has been said that mental distress is not by itself sufficient damage to ground an action :see McGregor on Damages (15th ed 1987) para 89. But that question does not arise here as the plaintiff has suffered other recoverable damage."
While the fact that there was other recoverable damage (e.g. financial loss)
meant that Lord Cooke did not have to decide whether mental distress alone
was sufficient, Richardson J considered that it was. He said:
"In the present case where there is a duty of care to the plaintiff, the scope of the damages recoverable is essentially a question of remoteness of damage which turns on whether the particular harm was a reasonably foreseeable consequence of the particular breaches of duty which have been established. And public policy concerns which emphasise the often temporary and relatively trivial nature of the harm and the risks of falsification cannot justify leaving the burden of the loss with the innocent victim where the claim is adequately proved."
Gault J also considered that there was no reason to interfere with the award
of damages for stress. Thus it would appear that in New Zealand, damages
claims for mental trauma in negligence or assault and battery will not fail
solely on the grounds that there is only transient mental trauma.
Section 14 Bar On Damages
The only remaining argument against such claims succeeding is where the
emotional trauma arises from witnessing or learning about another person
being injured or killed. It will be remembered that s14 of the Act bars damages
claims "arising directly or indirectly out of personal injury covered by this Act".
While it is clear that the person suffering from metal trauma has not suffered
a personal injury covered by the Act, the person whom he has seen injured or
killed certainly has.
The argument can then be made by a defendant that the damages claim for
mental trauma arises directly or indirectly out of the other persons personal
injury and is therefore barred by s14. The particular argument succeeded
recently before a Master of the High Court who struck out the plaintiff's claim.
In that case Palmer v Danes Shotover Rafts Ltd & ors
36 the plaintiff suffered nervous shock from seeing his wife killed in a rafting accident. But his claim
for $50000 damages against each defendant was struck out by the Master as
being barred by s14 of the ARCI Act 1992, because he personally had not
suffered physical injuries, although his wife clearly had. However this decision was recently reversed on appeal by Pankhurst J.
37 who said
"It is my view that the natural and ordinary meaning of s14(1) does not extend to the secondary victim of an accident"
At common law, the essential requirement for a nervous shock claim, is that
the defendant owed a duty of care to the plaintiff who suffered the nervous
shock. That allegation depends on a number of features including proximity
and relationship. The injuries suffered by the victim are only important in
showing that the nervous shock claim is likely to be genuine. As in Pugh's
case it is not essential for anyone to have been injured.
However until recently exemplary/punitive damages claims only arose in cases
of intentional harm. But they were fairly limited because most defendants who
caused harm intentionally were either in prison or impecunious - usually both.
Then following overseas developments
41, counsel in New Zealand started to claim such damages in cases of negligence. The first New Zealand case to award exemplary damages for negligent conduct was McLaren Transport Ltd
v Somerville
42. It was case where a garage employee over-inflated a tractor
tyre so negligently that it exploded, causing injuring the plaintiff serious
physical injuries which came under the definition of personal injury in the Act.
He also had cover as the personal injury was caused by an accident. However
he also sued for exemplary /punitive damages. The lower court awarded
$15,000 exemplary damages for negligent conduct that was upheld in the High
Court by Tipping J.
The test used by Tipping J was a simple one:
"Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard for the plaintiff's safety, meriting condemnation and punishment."
The matter did not go on appeal to the Court of Appeal, no doubt because the
amount awarded was so low. However the Court of Appeal in another case
which recently came before it, Ellison v L
43, would not commit itself to a decision that exemplary damages could be awarded for negligence.
In that case Mrs Ellison brought a claim for $250,000 exemplary damages
against her dentist. He had extracted a tooth, but negligently left some
packing in the wound which caused her some problems with infections until
it was removed some 9 months later. In its judgment the Court of Appeal said:
"We are prepared to accept for the sake of argument, though leaving the matter to be decided on another occasion, that in some cases of negligence exemplary damages may be awarded. But because negligence is an unintentional tort those cases are likely to be rare indeed. Exemplary damages are awarded to punish a defendant for high handed disregard of the rights of a plaintiff or for acting in bad faith or for abusing a public position or behaving in some other outrageous manner which infringes the rights of the defendant. Negligence simpliciter will never suffice."
In NZ therefore it is now clear that there will be no exemplary damages for
ordinary negligence, and this decision might slow down the rising number of
claims.
"The Courts will have to keep a tight rein on actions, with a view to
countering any temptation , conscious or unconscious, to give exemplary damages merely because the statutory benefits may be felt to be inadequate. Immoderate amounts will have to be discouraged."
Until recently even in cases of intentional torts the amounts awarded were
quite low
45. However in G v G 46 Cartwright J awarded the sum of $85000
in a case of serious domestic violence. There the Judge contrasted the
amounts awarded in personal injury claims with defamation awards of
$180,000 to $400,000, and observed that there was little justification for such
a contrast between large amounts ordered for harm to a reputation and the
more modest amounts for the serious physical, emotional and sometimes
psychiatric consequences of violence.
However the increasing levels in the amounts being claimed coupled with an
actual award of $85000 in G v G , prompted the Court of Appeal in Ellison v
L
47 to say:
"we desire to make an observation about the level of damages claimed. Mrs Ellison has sought leave to bring a claim for $250,000. Even if the conduct of the respondent had been outrageous and deserved to be marked by an award of exemplary damages, a claim of this size would be quite unrealistic. As far as we are aware, Judges in this country have restricted such awards to a mere fraction of the sum claimed here (for example, in McLaren Transport where apparently gross negligence in the inflating of a tyre cause serious injury $15000 was awarded). They have been right to do so. The marking out and punishment of outrageous behaviour can be adequately achieved by a relatively modest penalty. It is to be remembered that such awards are not intended as compensation. Legal advisers should be careful not to be associated with claims for amounts of damages which on any objective view are unattainable and give the appearance of being brought in terrorem"
Thus it appears clear that the amounts sought in exemplary damages claims
particularly in negligence cases will be so limited from now on that it will
probably not be worthwhile for plaintiffs to bring the action.
Prior criminal conviction
Furthermore in another recent decision Daniels v Thompson
48, the Court of
Appeal imposed another restriction on exemplary damages claims. In that case
on the grounds of public policy, the Court of Appeal barred exemplary
damages in a number of sexual abuse claims where there had been a prior
criminal conviction on the same matter. The decision might have a major
impact and lead to the situation where victims of crime refuse to cooperate
with the authorities in a prosecution so that they preserve their right to bring
an exemplary damages claim. Although in claims for injuries arising from
motor accidents involving drunk drivers the offender is invariably prosecuted
and punished without the need for any victim to appear, there may be no
choice of prosecution or litigation by such victims, it is interesting to note that
in a case of serious domestic violenceG v G , the plaintiff decided to sue for
damages rather than to seek prosecution.
If the above restrictions were not enough, the Court of Appeal in Re Chase
49
confirmed that section 3(2) Law Reform Act 1936 excludes exemplary
damages claims from the claims that survive the death of the victim, i.e. no
exemplary damages are available where the plaintiff dies from injuries caused
by the tortfeasor before the case is heard.
The short limitation period of 2 years in which to sue is another restriction on
damages claims for personal injury in New Zealand. However the Court of
Appeal has recently developed the law in G D Searle & Co v G
50 so that the
time limitation runs only from when bodily injury is discovered or ought
reasonably to have been discovered .
Thus the exclusion of mental trauma from the Act , the changing view of
exemplary damages for negligence, and the abolition of lump sums, all
contributed to the upsurge in litigation and brought lawyers back into the
compensation process. While the Court of Appeal may have now curtailed the
claims for exemplary damages for negligence, the claims for mental trauma
look set to escalate in an effort to obtain more compensation than that
available under the Act.
N.B. Unlike the 1982 Act there is no compensation for property damage even
for clothing or other personal items such as dentures or spectacles
61
damaged in the accident. Such matters arfe left to normal voluntary
insurance arrangements and civil actions for damages.
| Reserves 1996 | NZ$492,885 million |
| Income 1997 | NZ$2,076,604 million 66 |
| Expenditure 1997 | NZ$1,626,447 million |
| Surplus 1997 | NZ$450,157 million |
| Backdated care claims | NZ$155,033 million 66 |
| Surplus 1997 | NZ$295,124 million |
| Surplus carried forward | NZ$788,009 million |
NB. The sum of NZ$216,355 million dollars was actually set aside to pay for
backdated attendant care claims, but the accounts reflect an anticipated
appropriation by Parliament of $61,322 million
67.
Footnote: 1
Which came into force on 1 July 1992 (hereinafter referred to as "the Act".
For the background to this Act and cases thereunder, see J Miller and D Rennie,
Brooker's Accident Compensation in New Zealand 1992 Wellington, New Zealand Vols
1and 2 .
Footnote: 2 A person injured
at work does receive compensation for the first week, whereas compensation for
non work injuris start after the first week-ss 38 and 39 of the Act
Footnote: 3 Section 4 and
8 of the Act. See text accompanying footnote 16 for the statutory definitions
Footnote: 4 Section 8 of
the Act . See text accompanying footnote 17 for the definition of cover
Footnote: 5 This does not
bar claims for compensatory damages for mental trauma - see text accompanying
footnote 12, or claims for exemplary/punitive damages - see text accompanying
footnote 37. Nor does it prevent actions being brought in Courts outside of
New Zealand. Indeed the ACC may assist with such overseas litigation -s15 of
the Act
Footnote: 6 Section 4 and
8 of the Act. See text accompanying footnote 17 for the statutory definitions
Footnote: 7 S3 defines
accident as: Footnote: 8 However the
cause of the injury is of some importance in funding the scheme and in work
injury claims. See text accompanying footnote 60.
Footnote: 9 Hereinafter
referred to as the ACC.
Footnote: 10 Apart from
any general compensation problems faced by all claimants. In 1997 the median
time from registration of a claim to the payment of first week compensation
was 30 days - 1997 ACC Annual Report p 54.
Footnote: 11 Examples
of some of the cases filed are:
Footnote: 12 S2 Accident
Compensation Act 1982
Footnote: 13 Fenton v
Thorley [1903] AC 403
Footnote: 14 [1992] 2
NZLR 426
Footnote: 15 [1994] NZAR
6 The writer appeared as counsel in this case. Although it was decided in 1994
it was case under the 1982 Act. The case enabled a large group of the families
of crime victims killed by violent acts including motor vehicle crashes to gain
compensation for their mental trauma under the 1982 Act. Their cases had been
adjourned pending the test case of Cochrane.
Footnote: 16 Because
of pressure from employers groups who did not want such claims to come within
the ACC scheme as it would increase their ACC premiums. Ironically it has led
to this increase in litigation and the need for employers to take out insurance
against such claims.
Footnote: 17 The offences
listed in the First Schedule are theusual range of sex crimes - sexual violation,indecent
assault etc.
Footnote: 18 Apart from
the mental trauma suffered as a result of an act which is a sex crime
- s8(3)
Footnote: 19 The phrase
appears to be taken from the American Psychiatric Association's Diagnostic and
Statistical Manual of Mental Disorders, DSM III, 3rd edn, p6.
Footnote: 20 [1992] 2
NZLR 426,.434
Footnote: 21 s 8(3)
Footnote: 22 NZ Law Schools
suddenly had to start teaching nervous shock in Tort Law courses after neglecting
it for nearly 20 years. The legal profession also had to be warned, as they
could be sued for negligent advice if they failed to advise injured clients
of their possible damages claims - hence the Common Law Damages section in J
Miller and D Rennie, Brooker's Accident Compensation in New Zealand 1992 Wellington,
New Zealand Vol 1
Footnote: 23 s2 Crimes
Act 1961
Footnote: 24 [1975] 1
NZLR 486
Footnote: 25 See J Miller
and D Rennie, Brooker's Accident Compensation in New Zealand 1992 Wellington,
New Zealand Vol 1, Para AC4.04
Footnote: 26 The Review
and Appeal structure is contained in ss89-99 of the Act. In essence one applies
for a review of an adverse ACC decision to a Review Officer, then there is a
general appeal to the District Court exercising its Accident Compensation jurisdiction,
followed by an appeal on a question of law to the High Court,and eventually
to the Court of Appeal. In 1997 there were 3414 reviews and appeals heard, and
34.6% were decided against the ACC- 1997 ACC Annual Report p55.
Footnote: 27 In New Zealand
it is still unclear whether an assault and battery can only be committed intentionally.
In Dehn v AG [1988] 2 NZLR 564, 583, Tipping J said that a battery required
an intentional as opposed to an unintentional application of force. This point
was not considered on appeal by the Court of Appeal - [1989] 1 NZLR 320. Footnote: 28 High Court,
Rotorua CP16/93 Thorp J, 2/8/93.However in a recent decision Pankhurst J disagreed
with the decision of Thorp J in Kingi. .See Palmer v Danes Shotover Rafts Ltd
& 0rs, High Court, Invercargill, CP10/97, Pankhurst J., 18 March 1998.
Footnote: 29 [1992] 1
AC 410.
Footnote: 30 In Mouat
v Clark Boyce [1992] 2 NZLR 559, 569.
Footnote: 31 Van Soest
& ors v The Residual Health Unit & 0rs, High Court , Christchurch, CP180/96
, Master Venning, 22 December 1997 and Legge & ors v The Attorney General,
High Court , Christchurch, M290/96, Master Venning, 19 December 1997.
Footnote: 32 [1967] VR
831.
Footnote: 33 (1995) 36
NSWLR 1.
Footnote: 34 (1997) 68
SASR 124.
Footnote: 35 [1992] 2
NZLR 559.
Footnote: 36 High Court
Invercargill CP10/97, Master Venning, 3/12/97.
Footnote: 37 Palmer v
Danes Shotover Rafts Ltd & Ors, High Court , Invercargill, CP10/97 , Pankhurst
J., 18 March 1998. On appeal Pankhurst J's decision was upheld by the Court
of Appeal in Queenstown Lakes District Council & Ors v Palmer, CA 83/98,
2/11/98.
Footnote: 38 [1896] 2
QB 248,
Footnote: 39 [1992]2
NZLR 426.
Footnote: 40 [1982] 1
NZLR 97.
Footnote: 41 Coloca v
BP Australia Ltd [1992] 2 VR 441, Robitaille v Vancouver Hockey Club Ltd ( 1981)
125 DLR (3d) 228.
Footnote: 42 [1996] 3
NZLR 424 , (1996) 1 BACR 262.
Footnote: 43 CA 287/96
, 19/11/97.
Footnote: 44 [1982] 1
NZLR 97.
Footnote: 45A v M
[1991] 3 NZLR 228 $20000 awarded for marital rape. Footnote: 46 (1996)1
BACR 286, [1997] NZFLR 49-$200,000 claimed.
Footnote: 47 CA 287/96,
19/11/97.
Footnote: 48 CA86/96,
12/2/98. The decision of the Court of Appeal was upheld by the Privy Council.
However s 396 of the new Accident Insurance Act 1998 which comes into force
on 1/7/99 will allow such exemplary damages claims again.
Footnote: 49 [1989] 1
NZLR 325.
Footnote: 50 [1996] 2
NZLR 129.
Footnote: 51 s54 - since
increased to $60 per week for a 100% disability.
Footnote: 52 Sections
38 and 39. This is calculated on the gross earnings lost by the employee and
income tax is payable on the weekly compensation.
Footnote: 53 Sections
54 and 54A and Regulations.
Footnote: 54 Section
27 and Regulations.
Footnote: 55 Sections
18-26A and over 30 different sets of regulations govern the provision of these
matters and medical treatment. See the Regulations Section in J Miller and D
Rennie, Brooker's Accident Compensation in New Zealand 1992 Wellington, New
Zealand Vol 1. The Regulations are noted for their rigidity and the lack of
discretion available to the ACC. In an effort to resolve this after many complaints
from the public and the District Court who had to deal with the hard cases,
an amending section to the Act was passed-s 26A in 1996. This gives a discretion
to the ACC to exceed the regulations in the provision of assistance for social
rehabilitation.
Footnote: 56 Section
55.
Footnote: 57 Section
56.
Footnote: 58 Ibid. $2000
is also payable to any other dependants of the deceased.
Footnote: 59 Section
58. This is payable for up to 5 years or longer if the spouse has the care of
a child under 18 or any other dependent of the deceased.
Footnote: 60 Section
59 This extends to 21 years if the child is studying. Footnote: 61 s4 -Definition
of personal injury does not include these items, and there is no other section
in the Act or regulation to allow them in.
Footnote: 62 Part VII
of the Act Sections 100-134. On 1/7/99 a new Accident Insurance Act 1998 comes
into force. This Act allows private insurers to provide cover for workplace
accidents. This will change the funding of the scheme for the Employers account
but not for the others which will remain with the ACC.
Footnote: 63 The shifting
of the costs of motor vehicle injuries out of the Employers and Earners account
is really the only reason for considering whether an injury has been caused
by a vehicle. Footnote: 64 ibid.
Footnote: 65 ibid.
Footnote: 66 ACC Annual
Report 1997 p60.
Footnote: 67 The backdated
attendant care claims which amount to NZ$216,355 million dollars over the various
accounts arose from a pro bono case (Campbell & Ors v ACC, High Court Wellington,
No AP 200/95, Heron and Ellis JJ, 4/4/96). The writer was counsel for 5 families
whose children (4) or sibling (1) had been severely injured in traffic accidents.
The injured claimants required 24 hour a day care, but the ACC had only paid
lesser amounts leaving the families (usually the female members) to cope with
the shortfall. As a result of the decision, the ACC has had to review and pay
all such claims. Hence the sum set out in the accounts.
Footnote: 68 The mental
/nervous shock claims would represent the trauma from sexual crimes. The mental
injury claims would represent the mental injuries which stem from physical injuries
to that person e.g. depression from a broken leg failing to heal.
a) A specific event or series of events that involves the application of a force
or resistance external to the human body and that results in physical injury
.."
This clearly covers most motor vehicle injuries.
F v Northland Health Ltd (District Court, Whangarei NP 868/93, 1993) $150,000
exemplary damages sought by an employee for exposure to chemicals at the hospital.
M v Wellington Area Health Board (High Court, Wellington, CP 205/93, Gallen
J ,
16 /12/94) $250000 exemplary damages sought against two doctors and the Hospital
over the death of the plaintiff's wife. A further $75000 is being claimed for
mental trauma.
Akavi v Taylor Preston (High Court, Wellington, CP 93/94, Master Thomson, 13/9/94
) $150,000 exemplary damages sought by employee after being scalped by machinery
at work. Settled on confidential terms.
W v Health South Canterbury (High Court, Timaru, CP 2/95,1995) $1,500,000 compensatory
damages sought for mental trauma from the switching of new born babies by a
hospital. Settled on confidential terms.
W v Counties Manukau Health Ltd (High Court, Auckland, CP 583/94, Barker J ,13/4/95)
$200,000 exemplary damages sought against the Hospital for sexual abuse of two
children by a paedophile inadequately supervised on release from a Mental Hospital.
Boe v Hammond (High Court, Wellington, M3/95, Master Thomson, 26/5/95, $250,000
compensatory damages for mental trauma and $75000 exemplary damages from the
death of a spouse in a motor vehicle accident.
B v Counties Manukau Health Ltd (High Court, Auckland, 1995) $75000 exemplary
damages sought against a doctor and the Hospital over the birth of a brain damaged
child. A further $250,000 is being claimed for mental trauma.
R v Liddell and Auckland Area Health Board (High Court, Auckland, 1995) $250,000
exemplary damages sought for sexual abuse of two children by Liddell, a social
worker employed by the Hospital.
M v Counties Manukau Health Ltd (High Court, Auckland, 1996) $75000 exemplary
damages sought against a doctor and the Hospital over the death of a baby. A
further $250000 is being claimed for mental trauma.
Innes v AG (High Court Auckland CP 152/95, Elias J, 10/7/97) a claim for damages
by the estate of Matthew Innes for his death whilst being taken to Hospital
in a police car
B v Residual Health Unit(High Court Timaru 1997).
$1 million dollars compensatory damages claimed by parents for mental trauma
and $400,000 exemplary damages for brain damage caused to an infant in hospital.
W v Health Waikato Ltd (District Court, Te Kuiti 1997, CP 98/97, 1997) $100,000
compensatory damages for mental trauma suffered by a family for the loss of
the deceased's amputated legs.
McGrory v Ansett NZ Ltd ( High Court Auckland CP228/97, Smellie J, 11/12/97)
A claim by passengers for unspecified exemplary and compensatory damages from
an air crash
Jackson v Burcher & ors (High Court Hamilton CP56/94 Master Faire, 19/9/97)
a claim for $1.5 million exemplary damages for medical negligence and alleged
cover up of radioactive damage as the result of a scan
Some of these claims have been abandoned or settled, and the rest are still
going through.
Although the Court of Appeal in McKenzie v AG [1992] 2 NZLR 14 said
that claims for assault and battery were barred under the Accident Compensation
legislation, this decision was under the old definition of "personal injury
by accident" in the 1982 Act. The definition in the 1992 Act with its exclusion
of mental trauma is significantly different and now allows these claims to be
made.
AB v CD ( High Court Timaru, CP 53/89 Fraser J 1/3/92) $20000 awarded for sexual
abuse by father.
H v R [1996] 1 NZLR 299-$20000 for sexual abuse.
B v R (High Court, Auckland , M1957/93, Morris J ,15/296 ) $225,000 claimed,
$35000 awarded for sexual violation and abuse by uncle (now deceased). Value
of estate worth $110,000.
Section 60 also provides a similar percentage of 20% for other dependants of
the deceased. No more that 100% of the deceased's compensation is payable.
The definition of a motor vehicle injury in s3 is
"a) Any injury occurring as a consequence of the movement of a motor vehicle
or
b) Any injury occurring as a consequence of a motor vehicle that is stationary
being struck by another motor vehicle or other means of conveyance -
but excludes an injury suffered in the course of loading, unloading, servicing,
repair, or off-road use of a motor vehicle and any use of a motor vehicle other
than as a means of conveyance. "Off-road use" does not include use
of a motor vehicle that is off road as a direct result of its being out of control
or its having been involved in an accident."
Of the 6388 new motor vehicle claims in 1997, 379 were work related, and they
cost $1,872 million. There were also 1016 ongoing work claims at a cost of $16,603
million - ACC Injury Statistics 1997 p46.
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