IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-208
[2018] NZHC 2848
BETWEEN ACCIDENT COMPENSATION CORPORATION and “HK”
AppellantsAND
BRENDA NG, “L” and ACCIDENT COMPENSATION CORPORATION
Respondents
Hearing: 8 and 9 October 2018 Counsel:
A S Butler, S J Thomson and N J Fenton for ACC B J Peck and L J Newman for Brenda Ng and “L” E M Bransgrove for “HK”
Judgment:
2 November 2018
JUDGMENT OF CHURCHMAN J
This judgment was delivered by me on 2 November 2018 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
John Miller Law, Wellington Russell McVeagh, Wellington
ACCIDENT COMPENSATION CORPORATION and “HK” v NG, “L” and ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2848 [2 November 2018]
TABLE OF CONTENTS
Background [1]
Current wording of s 32 [16]
The parties’ positions [18]
The three appeals [25]
Interpretative approach [28]
Origins of 2005 amendment [41]
Analysis [101]
Answers to questions [103]
Application of findings to individual cases
Mrs Ng [104]
“L” [112]
“HK” [122]
Costs [143]
Background
[1] In 1972, the Government of New Zealand embarked on a bold social experiment when it enacted the Accident Compensation Act 1972 (the Act).
[2] Prior to then, those who had been injured in accidents had limited options to address the consequences of the injuries they had sustained. For those in employment, there was potentially some compensation available from the Workers’ Compensation Act 1956. Others were obliged to resort to the Social Security System, and for those unable to access either structure, there remained the common law action for negligence.
[3] At the heart of the action in negligence was the concept of fault. Unless a claimant could prove that the accident which occurred to them was someone else’s fault, they could not succeed in obtaining compensation for their loss.
[4] A Royal Commission of Inquiry, chaired by Sir Owen Woodhouse, was set up to identify whether there was a more socially equitable method of compensating accident victims than the somewhat threadbare patchwork of existing options.
[5] The Commission’s report (The Woodhouse Report) made a number of recommendations which formed the basis of the Act.1 The Act has been described as a social contract or social compact.2 It removed the fundamental right of access to the courts to sue in negligence for personal injury caused by accident in return for coverage under a scheme which provided for compensation based on the injury rather than proof of negligence.
[6] The Act, and its various subsequent iterations,3 has always been the product of policy choices made by successive governments. It did not implement all of the recommendations of The Woodhouse Report, and cover was initially restricted to “earners” and those who suffered personal injury by motor vehicle accident. It did not extend to cover illness, even though the social consequences of chronic illness can be as debilitating as the consequences of accidental injury.
[7] Many of…
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