ACC (ACCIDENT COMPENSATION SCHEME) TORTS Flashcards

Question

Treatment Injury ACC v AZ

Answer 1

*Facts * *Issue: Is AZ covered under ACC? * *CA Holding: Yes. * *CA Reasoning * *It is a personal injury under s 26(1)(b) of the ACA 2001. *The misdiagnosis is a treatment injury under ss 20(2)(b) and 20(2)(f) of the ACA 2001. AZ was born with Spina Bfida → which is a spinal condition, development of the spine causes a big disability AZ is now 20 → developed it in Utero → 20 weeks ultrasound scan should have detected it IF the ultrasound detected it SHE would have aborted Argued that AZ suffered a treatment injury → she would not have to deal with all the consequences of the failed scan She would have seeked termination. ACC declined cover → then it was brought to Court → Went to CA, CA: Agreed with the HC saying she does have cover for her own treatment injury Status of foetus → ACC accepts that if AZ suffered injury at 20 weeks she would suffer qualify for cover under the act once born → because Act does not include foetus until born. A foetus that is harmed during utero will live with the injury → and will consequently be entitled to cover under the act. Once she was born alive → she became a person and is entitled to cover → and regardless of the fact that it happened before she was a person. Spinal defects fall into physical injury definition Meets personal injury definition → treatment and treatment injury → satisfied. Act has broadened its scope → and what treatment injury covers. Treatment injury → treatment would have been termination and it would have happened. Spina Bfida should have been detected → constituted treatment → part of a diagnosis of medical condition or failure to provide treatment → SO THEREFORE IT IS A TREATMENT INJURY (S23) CAUSATION → SC test (Roper) → Material cause → termination would have meant she was not born and no Spina Bfida → Causal link between misdiagnosis and person being born with disease. Lead to opportunity loss to terminate. Entitled to cover for treatment failure. Entitlements limited to s69. Personal injury → greater than strain or sprain.

Answer 2

*Facts * *Issue: Are the claims barred by s 317 of the ACA 2001? *CA Holding: Yes * *CA Reasoning: *Arguments at [24]. * *Victims covered by ACC. * *How ACC is funded is ancillary. * *Victims not denied access to courts as can pursue exemplary damages. * *Section 321 merely prevents double recovery and should not be used to read down s 317. Argument → J and J → international company → dont pay anything additional in terms of levies to NZ → and not a part of the social contract that we have with the Government → so we should be able to sue them Court said → NO. If you are a person that suffers a treatment injury you are covered under ACC → and can’t sue J and J → JOHNSON V JOHNSON Produced hip implant which caused bad health consequences in people → JANDJ is a Int company Implants are imported to NZ People who had injury → can they sue J and J for compensatory damages → over and above what they already received They already had cover for treatment injury They wanted to sue j and j for additional loss → that ACC is not covering Why do they say J and J should be sued? In para 24 → policy reasons argued → Prima Facie → s317 is a bar → but does not apply to claims outside NZ The implants were manufactured by an English company, occurs outside of NZ → supplied to Depoy island then Depoy NZ This is wrongful conduct that happened outside NZ → says ACC is to cover conduct in NZ not outside. J and J are profiting. Outside NZ → not a party to social contract → do not share. → they pay employer levy if employees here. Not party to our social contract → statutes should not be treated as to matters outside NZ Mr Goddard → tried to argue that it should not be covered → do not share collective responsibility. Person carrying on business in NZ receives ACC levies → COURT: Disagrees → Says they are barred because covered by Act. Reference to social contract is a surrender of individual right to sue → between government and community → purpose is not to protect people who are funding the schemes → but to benefit all people who face these. Does not matter if J and J are paying → it is Ancillary. Tried to argue - Goddard → have this section which would allow subrogation of legal rights to ACC → and if that is the case then we should be able to take reasonable steps to enforce the right. SAID: Not concerned with more payment → S321 → prevents double recovery Contemplated by the woodhouse report → In any event you can seek exemplary damages → while lawyers may act pro bono → exemplary damages are very expensive Policy decision → means giving precedence to ACC.

Answer 3

What are exemplary damages? *Facts * *Issue: Does ACC bar a common law action for exemplary damages? * *Holding * *Reasoning Exemplary damages case. 319 → The mens rea (mental element) for exemplary damages is high → needs to be outrageous Deliberate wrongdoing or subjective recklessness → high probability that what your doing is going to do wrong → gross negligence Intentional wrongdoing → or being subjectively reckless. Ms Couch injured at RSA → working alongside William Bell → Ms Couch injured by William Bell → three people died and she lived Sued department of corrections → for negligence → and wanted exemplary damages concurrent with ACC Sue for negligence → to decide whether exemplary damages are available → They are And test is → intentional wrongdoing or subjective recklessness → exemplary damages are modest and should be modest. Awarded $3000 LECTURE 2: MCGOUGAN: If they wanted to sue J and J → they would have to around 317 bar in the ACA. They tried to argue in UK but they said 317 and go back to NZ and argue. Argued → we have harm to us covered by ACC → but we have loss of enjoyment of life, and pain and suffering → which have not been covered by ACC. Goddard → argued that J and J dont pay into social contract → for being pharm manufacturers → so we should be able to sue them outside of ACC. COURT: Said the bar is absolute → no fault scheme → dont care how bad the fault is → if you suffer treatment injury you are covered and give up ability to sue. Goes against the scheme → then if you do then you may have to have private insurance involved. In US → if no private insurance → then you would have to pay for the medication. COUCH: 319 is Correct The mental element for exemplary damages is very very high Defendants behaviour needs to be outrageous → Deliberate wrongdoing, or SUBJECTIVE RECKLESSNESS. Knowing that there is a high probability that what you are doing is going to cause harm and then it does cause harm In rare cases → gross negligence could apply. Generally though → Intentional wrongdoing → or they are being SUBJECTIVELY RECKLESS. FACTS: Ms Couch gravely injured in attack in RSA → William Bell had a criminal record and was on parole. Was allowed to work in RSA with cash and alcohol on patrol → Couch was severely attacked → three people died and she lived. Sued department of corrections → the Crown. To say they were negligent and exemplary damages needed to be awarded. Covered by ACC → but said it was egregious. AG → defended this. They sue in negligence → COURT DECIDES WHETHER EXEMPLARY DAMAGES AVAILABLE: Said it was available → The TEST → INTENTIONAL WRONG DOING OR SUBJECTIVE RECKLESSNESS Exemplary damages normally modest and should be modest. Court needs to resist using exemplary damages for more compensation → exemplary damages are TO PUNISH. Compensatory damages → are compensate for loss. Should not give Exemplary because she did not have enough for ACC. AG settled for $300,000.

Answer 4

The purpose of this Act is to enhance the public good and reinforce the social contract represented by the first accident compensation scheme by providing for a fair and sustainable scheme for managing personal injury that has, as its overriding goals, minimising both the overall incidence of injury in the community, and the impact of injury on the community (including economic, social, and personal costs), through— (a) establishing as a primary function of the Corporation the promotion of measures to reduce the incidence and severity of personal injury: (b) providing for a framework for the collection, co-ordination, and analysis of injury-related information: (ba) ensuring that the Corporation monitors access to the accident compensation scheme by Māori and identified population groups in order to deliver services under this Act in a manner that supports access to the scheme by injured Māori and injured persons in those population groups: (c) ensuring that, where injuries occur, the Corporation’s primary focus should be on rehabilitation with the goal of achieving an appropriate quality of life through the provision of entitlements that restores to the maximum practicable extent a claimant’s health, independence, and participation: (d) ensuring that, during their rehabilitation, claimants receive fair compensation for loss from injury, including fair determination of weekly compensation and, where appropriate, lump sums for permanent impairment: (e) ensuring positive claimant interactions with the Corporation through the development and operation of a Code of ACC Claimants’ Rights: (f) ensuring that persons who suffered personal injuries before the commencement of this Act continue to receive entitlements where appropriate.

Answer 5

Key terms in this Part This Part uses and defines the following key terms: accident (which is defined in section 25) mental injury (which is defined in section 27) motor vehicle injury (which is defined in sections 29(2) and 35) personal injury (which is defined in section 26) personal injury caused by a work-related gradual process, disease, or infection (which is defined in section 30) treatment injury (which is defined in section 32) work-related personal injury (which is defined in sections 28 and 29(1)). Section 19: substituted, on 1 July 2005, by section 6 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45).

Answer 6

A person has cover for a personal injury if— (a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and (c) the personal injury is described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to— (a) personal injury caused by an accident to the person: (b) personal injury that is treatment injury suffered by the person: (c) treatment injury in circumstances described in section 32(7): (d) personal injury that is a consequence of treatment given to the person for another personal injury for which the person has cover: (e) personal injury caused by a work-related gradual process, disease, or infection suffered by the person: (f) personal injury caused by a gradual process, disease, or infection that is treatment injury suffered by the person: (g) personal injury caused by a gradual process, disease, or infection consequential on personal injury suffered by the person for which the person has cover: (h) personal injury caused by a gradual process, disease, or infection consequential on treatment given to the person for personal injury for which the person has cover: (i) personal injury that is a cardiovascular or cerebrovascular episode that is treatment injury suffered by the person: (j) personal injury that is a cardiovascular or cerebrovascular episode that is personal injury suffered by the person to which section 28(3) applies. (3) Subsections (1) and (2) are subject to the following qualifications: (a) section 23 denies cover to some persons otherwise potentially within the scope of subsection (1): (b) section 24 denies cover to some persons otherwise potentially within the scope of subsections (1) and (2)(e). (4) A person who suffers personal injury that is mental injury in circumstances described in section 21 has cover under section 21, but not under this section.

Answer 7

(1) A person has cover for a personal injury that is a mental injury if— (a) he or she suffers the mental injury inside or outside New Zealand on or after 1 April 2002; and (b) the mental injury is caused by an act performed by another person; and (c) the act is of a kind described in subsection (2). (2) Subsection (1)(c) applies to an act that— (a) is performed on, with, or in relation to the person; and (b) is performed— (i) in New Zealand; or (ii) outside New Zealand on, with, or in relation to a person who is ordinarily resident in New Zealand when the act is performed; and (c) is within the description of an offence listed in Schedule 3. (3) For the purposes of this section, it is irrelevant whether or not the person is ordinarily resident in New Zealand on the date on which he or she suffers the mental injury. (4) Section 36 describes how the date referred to in subsection (3) is determined. (5) For the purposes of this section, it is irrelevant that— (a) no person can be, or has been, charged with or convicted of the offence; or (b) the alleged offender is incapable of forming criminal intent.

Answer 8

(1) This section applies to persons who suffered personal injury that is mental or nervous shock suffered as an outcome of any act of any other person, which act— (a) was performed on, with, or in relation to the claimant (but not on, with, or in relation to any other person); and (b) was within the description of any offence listed in Schedule 1 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act); and (c) was performed before 1 July 1992 (including before 1 April 1974) and was performed— (i) in New Zealand; or (ii) outside New Zealand, and the claimant was ordinarily resident in New Zealand within the meaning of the 1992 Act when the act was actually performed. (2) For the purpose of subsection (1),— (a) the personal injury is deemed to have been suffered on the date of the first treatment that the claimant received for that personal injury as that personal injury; and (b) that first treatment must have been received on or after 1 July 1992 and before 1 July 1999; and (c) the treatment must have been of a kind for which the Corporation was required or permitted to make payments either directly under regulations made under the 1992 Act or under an agreement or contract or arrangement under section 29A of the 1992 Act, irrespective of whether or not it made any payment in the particular case. (3) For the purposes of subsection (1), it is irrelevant— (a) that no person can be, or has been, charged with or convicted of the offence; or (b) that the alleged offender is incapable of forming criminal intent; or (c) whether or not the person who suffered the personal injury was ordinarily resident in New Zealand within the meaning of the 1992 Act when the personal injury is deemed to have been suffered. (4) Persons to whom this section applies are deemed to have had cover under the 1992 Act for the personal injury described in subsection (1), and the following provisions apply: (a) payments made by or through the Corporation (or a subsidiary of the Corporation) or the Department of Labour to those persons for a personal injury described in subsection (1), whether made before or after the commencement of this section, are deemed to be entitlements paid under the 1992 Act to the extent that the correct amounts were paid: (b) for the purpose of paragraph (a), it does not matter whether or not the payment is a payment made in the belief that section 8(3) of the 1992 Act provided cover: (c) entitlements available as a result of cover deemed by this section are subject to Part 13 of the Accident Insurance Act 1998 and Part 11 of this Act: (d) Part 5 applies to decisions made by or on behalf of the Corporation between 15 July 2003 and the commencement of this section on claims made under section 8(3) of the 1992 Act for which cover is deemed by this section, and Part 5 applies as if those decisions had been made on the date of the commencement of this section. (5) However, the following provisions apply to civil proceedings brought before or after the commencement of this section seeking general damages for mental or nervous shock suffered by a person as an outcome of any act described in subsection (1) (the proceedings): (a) if the plaintiff received judgment in the proceedings, in his or her favour, before the commencement of this section, the plaintiff does not have cover under this section for the injury or injuries to which the proceedings relate: (b) if the proceedings were filed, but not heard, before the date of introduction of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005, nothing in this section prevents the proceedings from being heard or prevents a court from awarding the plaintiff general damages for the mental or nervous shock: (c) if the plaintiff continues the proceedings, the plaintiff must declare to the court any payments and entitlements received from the Corporation for the personal injury for which damages are sought, and the court must take those payments and entitlements into account in awarding the plaintiff any damages: (d) on the date judgment is given in the proceedings, the plaintiff— (i) does not have cover under this section for the injury or injuries to which the proceedings relate; and (ii) must advise the Corporation of the judgment: (e) if the plaintiff loses cover by virtue of paragraph (a) or paragraph (d), the Corporation may not recover any part of an amount that is deemed by subsection (4)(a) to be an entitlement paid to the plaintiff under the 1992 Act.

Answer 9

(1) A person has cover for a personal injury that is a work-related mental injury if— (a) he or she suffers the mental injury inside or outside New Zealand on or after 1 October 2008; and (b) the mental injury is caused by a single event of a kind described in subsection (2). (2) Subsection (1)(b) applies to an event that— (a) the person experiences, sees, or hears directly in the circumstances described in section 28(1); and (b) is an event that could reasonably be expected to cause mental injury to people generally; and (c) occurs— (i) in New Zealand; or (ii) outside New Zealand to a person who is ordinarily resident in New Zealand when the event occurs. (3) For the purposes of this section, it is irrelevant whether or not the person is ordinarily resident in New Zealand on the date on which he or she suffers the mental injury. (4) Section 36(1) describes how the date referred to in subsection (3) is determined. (5) In subsection (2)(a), a person experiences, sees, or hears an event directly if that person— (a) is involved in or witnesses the event himself or herself; and (b) is in close physical proximity to the event at the time it occurs. (6) To avoid doubt, a person does not experience, see, or hear an event directly if that person experiences, sees, or hears it through a secondary source, for example, by— (a) seeing it on television (including closed circuit television): (b) seeing pictures of, or reading about, it in news media: (c) hearing it on radio or by telephone: (d) hearing about it from radio, telephone, or another person. (7) In this section, event— (a) means— (i) an event that is sudden; or (ii) a direct outcome of a sudden event; and (b) includes a series of events that— (i) arise from the same cause or circumstance; and (ii) together comprise a single incident or occasion; but (c) does not include a gradual process.

Answer 10

(1) A person has cover for a personal injury if— (a) he or she suffers the personal injury outside New Zealand on or after 1 April 2002; and (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and (c) the person is ordinarily resident in New Zealand when he or she suffers the personal injury; and (d) the personal injury is one for which the person would have cover if he or she had suffered it in New Zealand. (2) Subsection (1) applies subject to subsection (3). (3) A person has cover for treatment injury if he or she suffers the personal injury on or after 1 July 2005 as a result of treatment given to him or her while outside New Zealand, but only if the circumstances described in subsection (4) exist. (4) The circumstances are— (a) the treatment is given by a person who has qualifications that are the same as or equivalent to those of a registered health professional; and (b) the personal injury would be personal injury caused by treatment if the treatment were given by or at the direction of the equivalent of a registered health professional and the person suffered the injury in New Zealand; and (c) the person is ordinarily resident in New Zealand when the treatment is given (whether or not he or she is ordinarily resident in New Zealand on the date on which he or she suffers the personal injury). (5) Section 38 describes how the date on which the person suffers the personal injury referred to in subsection (4)(c) is determined. (6) A person who suffers personal injury that is mental injury in circumstances described in section 21 has cover under section 21, but not under this section. (7) A person who suffers personal injury that is work-related mental injury in circumstances described in section 21B has cover under section 21B, but not under this section.

Answer 11

1) A person not ordinarily resident in New Zealand does not have cover for a personal injury if he or she suffers it while he or she— (a) is on board a ship or aircraft or other means of conveyance described in subsection (2); or (b) is embarking or disembarking from any such ship or aircraft or conveyance. (2) Subsection (1)(a) relates to the ship, aircraft, or conveyance on which the person— (a) comes to New Zealand; or (b) leaves New Zealand; or (c) comes to New Zealand, is carried and accommodated in the course of visiting New Zealand, and leaves New Zealand. (3) For the purposes of subsection (1)(b),— (a) embarking begins as soon as a person is on a gangway, air bridge, or other thing attached to or laid against a ship, aircraft, or other conveyance and available for use in embarking: (b) disembarking finishes as soon as a person has left any gangway, air bridge, or other thing attached to or laid against a ship, aircraft, or other conveyance and available for use in disembarking.

Answer 12

(1) A person does not have cover for a personal injury caused by a work-related gradual process, disease, or infection if— (a) he or she suffers the personal injury because, before 1 April 1974, he or she performed a task, or worked in an environment, in the circumstances described in section 30(2); and (b) he or she performed the task, or worked in the environment, outside New Zealand; and (c) he or she was not ordinarily resident in New Zealand when he or she performed the task or worked in the environment (whether or not he or she is ordinarily resident in New Zealand on the date on which he or she suffers the personal injury). (2) Section 37 describes how the date referred to in subsection (1)(c) is determined.

Answer 13

(1) Accident means any of the following kinds of occurrences: (a) a specific event or a series of events, other than a gradual process, that— (i) involves the application of a force (including gravity), or resistance, external to the human body; or (ii) involves the sudden movement of the body to avoid a force (including gravity), or resistance, external to the body; or (iii) involves a twisting movement of the body: (b) the inhalation of any solid, liquid, gas, or foreign object on a specific occasion, which kind of occurrence does not include the inhalation of a virus, bacterium, protozoan, or fungus, unless that inhalation is the result of the criminal act of a person other than the injured person: (ba) the oral ingestion of any solid, liquid, gas, fungus, or foreign object on a specific occasion, which kind of occurrence does not include the ingestion of a virus, bacterium, or protozoan, unless that ingestion is the result of the criminal act of a person other than the injured person: (c) a burn, or exposure to radiation or rays of any kind, on a specific occasion, which kind of occurrence does not include a burn or exposure caused by exposure to the elements: (d) the absorption of any chemical through the skin within a defined period of time not exceeding 1 month: (e) any exposure to the elements, or to extremes of temperature or environment, within a defined period of time not exceeding 1 month, that,— (i) for a continuous period exceeding 1 month, results in any restriction or lack of ability that prevents the person from performing an activity in the manner or within the range considered normal for the person; or (ii) causes death: (f) 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. (2) However, accident does not include— (a) any of those kinds of occurrences if the occurrence is treatment given,— (i) in New Zealand, by or at the direction of a registered health professional; or (ii) outside New Zealand, by or at the direction of a person who has qualifications that are the same as or equivalent to those of a registered health professional; or (b) any ecto-parasitic infestation (such as scabies), unless it is work-related; or (c) the contraction of any disease carried by an arthropod as an active vector (such as malaria that results from a mosquito bite), unless it is work-related. (2A) Subsection (2)(a) does not apply to an accident of the kind described in subsection (1)(f). (3) 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.

Answer 14

1) Personal injury means— (a) the death of a person; or (b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (c) mental injury suffered by a person because of physical injuries suffered by the person; or (d) mental injury suffered by a person in the circumstances described in section 21; or (da) work-related mental injury that is suffered by a person in the circumstances described in section 21B; or (e) damage (other than wear and tear) to dentures or prostheses that replace a part of the human body. (1A) Personal injury includes any degree of hearing loss that is 5% or more of binaural hearing loss caused by a personal injury described in section 20(2). (1B) Personal injury does not include any degree of hearing loss caused by— (a) a personal injury other than a personal injury described in section 20(2); or (b) the ageing process; or (c) any other factors. (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 20(2)(e) to (h). (3) Personal injury does not include a cardiovascular or cerebrovascular episode unless it is personal injury of a kind described in section 20(2)(i) or (j). (4) Personal injury does not include— (a) personal injury caused wholly or substantially by the ageing process; or (b) personal injury to teeth or dentures caused by the natural use of those teeth or dentures. (5) For the purposes of subsection (1)(e) and to avoid doubt, prostheses does not include hearing aids, spectacles, or contact lenses.

Answer 15

Mental injury means a clinically significant behavioural, cognitive, or psychological dysfunction.

Answer 16

(1) A work-related personal injury is a personal injury that a person suffers— (a) while he or she is at any place for the purposes of his or her employment, including, for example, a place that itself moves or a place to or through which the claimant moves; or (b) while he or she is having a break from work for a meal or rest or refreshment at his or her place of employment; or (c) while he or she is travelling to or from his or her place of employment at the start or finish of his or her day’s work, if he or she is an employee and if the transport— (i) is provided by the employer; and (ii) is provided for the purpose of transporting employees; and (iii) is driven by the employer or, at the direction of the employer, by another employee of the employer or of a related or associated employer; or (d) while he or she is travelling, by the most direct practicable route, between his or her place of employment and another place for the purposes of getting treatment for a work-related personal injury, if the treatment— (i) is necessary for the injury; and (ii) is treatment of a type that the claimant is entitled to under Part 1 of Schedule 1. (2) In subsection (1)(d), most direct practicable route does not include those parts of a route that deviate unreasonably from, or interrupt, a journey for purposes unrelated to the employment or the treatment. (3) Work-related personal injury includes a cardiovascular or cerebrovascular episode suffered by a person, if the episode is caused by physical effort or physical strain, in performing his or her employment, that is abnormal in application or excessive in intensity for the person. (4) Work-related personal injury includes personal injury caused by a work-related gradual process, disease, or infection. (4A) Work-related personal injury includes work-related mental injury that is suffered in the circumstances described in section 21B. (5) Work-related personal injury includes personal injury suffered by a person resulting from treatment for a work-related personal injury as defined in subsections (1), (3), or (4), whether or not the injury is a treatment injury as defined in section 32. (6) Work-related personal injury does not include personal injury suffered by a person when all the following conditions exist: (a) the personal injury is suffered in any of the circumstances described in subsection (1); and (b) the personal injury is suffered in the circumstances described in section 21; and (c) the person elects to have the personal injury regarded as a non-work injury, in which case that personal injury is a non-work injury. (7) It is irrelevant to the decision whether the person suffered a work-related personal injury that, when the event causing the injury occurred, he or she— (a) may have been acting in contravention of any legislation applicable to the employment, or in contravention of any instructions, or in the absence of instructions; or (b) may have been working under an illegal contract; or (c) may have been indulging in, or may have been the victim of, misconduct, skylarking, or negligence; or (d) may have been the victim of a force of nature. (8) This section is subject to section 29 (personal injuries that are both work-related and motor vehicle injuries).

Answer 17

(1) An injury is a work-related personal injury, and is not a motor vehicle injury, if it— (a) falls within the definitions of both work-related personal injury and motor vehicle injury; but (b) is suffered in the circumstances described in section 28(1)(c) or (d) that relate to travel to or from employment or a place of treatment. (2) An injury is a motor vehicle injury, and is not a work-related personal injury, if it— (a) falls within the definitions of both motor vehicle injury and work-related personal injury; but (b) is suffered in the circumstances described in section 28(1)(a) or (b). (3) However, a person is entitled to first week compensation if either subsection (1) or subsection (2) applies.

Answer 18

(1) Personal injury caused by a work-related gradual process, disease, or infection means personal injury— (a) suffered by a person; and (b) caused by a gradual process, disease, or infection; and (c) caused in the circumstances described in subsection (2). (1A) Subsection (1)(c) is subject to subsection (2A). (1A) [Repealed] (2) The circumstances are— (a) the person— (i) performs an employment task that has a particular property or characteristic; or (ii) is employed in an environment that has a particular property or characteristic; and (b) the particular property or characteristic— (i) causes, or contributes to the cause of, the personal injury; and (ii)[Repealed] (iii) may or may not be present throughout the whole of the person’s employment; and (c) that, if the particular property or characteristic is present in both the person’s employment tasks or environment and non-employment activities or environment, it is more likely that the person’s personal injury was caused as a result of the employment tasks or environment rather than the non-employment activities or environment. (2A) However, even if it is established that a claimant’s personal injury was caused in the circumstances described in subsection (2), the Corporation may decline the claim if the Corporation establishes that the risk of suffering the personal injury is not significantly greater for persons who— (a) perform the employment task than it is for persons who do not perform it; or (b) are employed in that type of environment than it is for persons who are not. (2A) [Repealed] (3) Personal injury caused by a work-related gradual process, disease, or infection includes personal injury that is— (a) of a type described in Schedule 2; and (b) suffered by a person who is or has been in employment— (i) that involves exposure, or the prescribed level or extent of exposure, to agents, dusts, compounds, substances, radiation, or things (as the case may be) described in that schedule in relation to that type of personal injury; or (ii) in an occupation, industry, or process described in that schedule in relation to that type of personal injury. (3A) To avoid doubt, where a claim is lodged for cover for a work-related gradual process, disease, or infection, section 57 applies to require, among other things, the Corporation to investigate the claim at its own expense. (4) Personal injury of a type described in subsection (3) does not require an assessment of causation under subsection (1)(b) or (c). (4A) This Act covers personal injury caused by a work-related gradual process, disease, or infection only if— (a) the exposure to the gradual process, disease, or infection actually occurred in New Zealand; or (b) the person concerned was ordinarily resident in New Zealand when the exposure actually occurred. (5) Personal injury caused by a work-related gradual process, disease, or infection does not include— (a) personal injury related to non-physical stress; or (b) any degree of deafness for which compensation has been paid under the Workers’ Compensation Act 1956. (6) Subsection (7) applies if, before 1 April 1974, the person— (a) performed an employment task that had a particular property or characteristic; or (b) was employed in an environment that had a particular property or characteristic. (7) The circumstances referred to in subsection (6) do not prevent the person’s personal injury from being personal injury caused by a work-related gradual process, disease, or infection, but he or she does not have cover for it if section 24 or section 361 applies to him or her.

Answer 19

(1) Treatment injury means personal injury that is— (a) suffered by a person— (i) seeking treatment from 1 or more registered health professionals; or (ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or (iii) referred to in subsection (7); and (b) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including— (i) the person’s underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal injury: (a) personal injury that is wholly or substantially caused by a person’s underlying health condition: (b) personal injury that is solely attributable to a resource allocation decision: (c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment. (3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury. (4) Treatment injury includes personal injury suffered by a person as a result of treatment given as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6). (5) One of the circumstances referred to in subsection (4) is where the claimant did not agree, in writing, to participate in the trial. (6) The other circumstance referred to in subsection (4) is where— (a) an ethics committee— (i) approved the trial; and (ii) was satisfied that the trial was not to be conducted principally for the benefit of the manufacturer or distributor of the medicine or item being trialled; and (b) the ethics committee was approved by the Health Research Council of New Zealand or the Director-General of Health at the time it gave its approval. (7) If a person (person A) suffers an infection that is a treatment injury, cover for that personal injury extends to— (a) person A’s spouse or partner, if person A has passed the infection on directly to the spouse or partner: (b) person A’s child, if person A has passed the infection on directly to the child: (c) any other third party, if person A has passed the infection on directly to that third party: (d) person A’s child or any other third party, if— (i) person A has passed the infection directly to his or her spouse or partner; and (ii) person A’s spouse or partner has then passed the infection directly to the child or third party.

Answer 20

(1) Treatment injury means personal injury that is— (a) suffered by a person— (i) seeking treatment from 1 or more registered health professionals; or (ii) receiving treatment from, or at the direction of, 1 or more registered health professionals; or (iii) referred to in subsection (7); and (b) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including— (i) the person’s underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following kinds of personal injury: (a) personal injury that is wholly or substantially caused by a person’s underlying health condition: (b) personal injury that is solely attributable to a resource allocation decision: (c) personal injury that is a result of a person unreasonably withholding or delaying their consent to undergo treatment. (3) The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury. (4) Treatment injury includes personal injury suffered by a person as a result of treatment given as part of a clinical trial, in the circumstances described in subsection (5) or subsection (6). (5) One of the circumstances referred to in subsection (4) is where the claimant did not agree, in writing, to participate in the trial. (6) The other circumstance referred to in subsection (4) is where— (a) an ethics committee— (i) approved the trial; and (ii) was satisfied that the trial was not to be conducted principally for the benefit of the manufacturer or distributor of the medicine or item being trialled; and (b) the ethics committee was approved by the Health Research Council of New Zealand or the Director-General of Health at the time it gave its approval. (7) If a person (person A) suffers an infection that is a treatment injury, cover for that personal injury extends to— (a) person A’s spouse or partner, if person A has passed the infection on directly to the spouse or partner: (b) person A’s child, if person A has passed the infection on directly to the child: (c) any other third party, if person A has passed the infection on directly to that third party: (d) person A’s child or any other third party, if— (i) person A has passed the infection directly to his or her spouse or partner; and (ii) person A’s spouse or partner has then passed the infection directly to the child or third party.

Answer 21

(1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes— (a) the giving of treatment: (b) a diagnosis of a person’s medical condition: (c) a decision on the treatment to be provided (including a decision not to provide treatment): (d) a failure to provide treatment, or to provide treatment in a timely manner: (e) obtaining, or failing to obtain, a person’s consent to undergo treatment, including any information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person to make an informed decision on whether to accept treatment: (f) the provision of prophylaxis: (g) the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently: (h) the application of any support systems, including policies, processes, practices, and administrative systems, that— (i) are used by the organisation or person providing the treatment; and (ii) directly support the treatment. (2) Subsection (1) does not affect the application of the definition of treatment in section 6(1) for purposes other than those stated in subsection (1). (3) Subsection (2) is for the avoidance of doubt.

Answer 22

(1) This section applies to— (a) claims for cover for personal injury caused by medical misadventure that were lodged with the Corporation before 1 July 2005, but have not been determined; and (b) claims for cover for personal injury caused by medical misadventure that were declined by the Corporation before 1 July 2005, but are lodged again on or after that date as claims for cover for treatment injury (and not lodged as claims referred to in subsection (4)). (2) Claims lodged in the circumstances described in subsection (1) must be determined under the relevant provisions in force immediately before 1 July 2005. (3) Reviews and appeals must be dealt with under the relevant provisions of Part 5 in force immediately before 1 July 2005, if the decision being reviewed or appealed— (a) was made before 1 July 2005; or (b) is one to which subsection (2) applies. (4) Subsection (1)(b) does not apply in relation to a claimant if,— (a) before 1 July 2005, the Corporation declined the claimant’s claim for cover for personal injury caused by medical misadventure because there was no personal injury; and (b) on or after 1 July 2005, the claimant lodges a claim for cover for treatment injury in respect of a personal injury that— (i) occurred after the decision to decline the earlier claim (whether before or after 1 July 2005); and (ii) arises out of the circumstances on which the earlier claim was based. (5) To avoid doubt, a claim for cover for personal injury caused by medical misadventure before 1 July 2005 that is lodged for the first time on or after 1 July 2005 must be determined under the relevant provisions in force on or after 1 July 2005 (that is, it is to be determined as if it were a treatment injury).

Answer 23

(1) Motor vehicle injury— (a) means— (i) a personal injury suffered because of the movement of a motor vehicle; or (ii) a personal injury suffered because of a stationary motor vehicle being struck by another motor vehicle or some other means of conveyance; but (b) does not include a personal injury that is a work-related mental injury. (2) However, motor vehicle injury does not include a personal injury suffered— (a) in the course of loading, unloading, repairing, or servicing a motor vehicle; or (b) in the course of any use of a motor vehicle other than as a means of conveyance; or (c) in the course of off-road use of a motor vehicle. (3) In subsection (2)(c), off-road use does not include use that is off-road as a direct result of the motor vehicle being out of control or having been involved in an accident. (4) This section is subject to section 29 (personal injuries that are both work-related and motor vehicle injuries).

Answer 24

(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of— (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts. (2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,— (a) any damage to property; or (b) any express term of any contract or agreement (other than an accident insurance contract under the Accident Insurance Act 1998); or (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service. (3) However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (2) for personal injury of the kinds described in subsection (1). (4) Subsection (1) does not prevent any person bringing proceedings under— (a) section 50 or section 51 of the Health and Disability Commissioner Act 1994; or (b) any of sections 92B, 92E, 92R, 122, 122A, 122B, 123, or 124 of the Human Rights Act 1993. (5) Subsection (1) does not prevent any person bringing proceedings in any court in New Zealand for damages for personal injury of the kinds described in subsection (1), suffered in New Zealand or elsewhere, if the cause of action is the defendant’s liability for damages under the law of New Zealand under any international convention relating to the carriage of passengers. (6) Subsection (1) does not affect proceedings to which section 318(3) applies. (7) Nothing in this section is affected by— (a) the failure or refusal of any person to lodge a claim for personal injury of the kinds described in subsection (1); or (b) any purported denial or surrender by any person of any rights relating to personal injury of the kinds described in subsection (1); or (c) the fact that a person who has suffered personal injury of the kinds described in subsection (1) is not entitled to any entitlement under this Act.

Answer 25

(1) This section applies to proceedings for damages arising directly or indirectly out of personal injury caused by a work-related gradual process, disease, or infection that is— (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts. (2) No person may bring proceedings to which this section applies independently of this Act in any court in New Zealand, whether the proceedings are under any rule of law or any enactment. (3) Subsection (2) does not prevent a person who commenced proceedings to which this section applies before 1 April 1993 from completing the proceedings. (4) Subsection (2) does not prevent any person bringing proceedings relating to, or arising from,— (a) any damage to property; or (b) any express term of any contract or agreement (other than an accident insurance contract under the Accident Insurance Act 1998); or (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service. (5) However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (4) for personal injury of the kinds described in subsection (1).

Answer 26

(1) Nothing in this Act, and no rule of law, prevents any person from bringing proceedings in any court in New Zealand for exemplary damages for conduct by the defendant that has resulted in— (a) personal injury covered by this Act; or (b) personal injury covered by the former Acts. (2) The court may make an award of exemplary damages for conduct of the kind described in subsection (1) even though— (a) the defendant has been charged with, and acquitted or convicted of, an offence involving the conduct concerned in the claim for exemplary damages; or (b) the defendant has been charged with such an offence, and has been discharged without conviction under section 106 of the Sentencing Act 2002 or convicted and discharged under section 108 of that Act; or (c) the defendant has been charged with such an offence and, at the time at which the court is making its decision on the claim for exemplary damages, the charge has not been dealt with; or (d) the defendant has not, at the time at which the court is making its decision on the claim for exemplary damages, been charged with such an offence; or (e) the limitation period for bringing a charge for such an offence has expired. (3) In determining whether to award exemplary damages and, if they are to be awarded, the amount of them, the court may have regard to— (a) whether a penalty has been imposed on the defendant for an offence involving the conduct concerned in the claim for exemplary damages; and (b) if so, the nature of the penalty.

ACC (ACCIDENT COMPENSATION SCHEME) TORTS Flashcards

Understand the ACC statute and how it relates to Torts (50 cards)