Law of Torts Exam Notes
Accident Compensation Scheme (ACC)
Ø It started in 1974 – Woodhouse Report – this was mainly to discuss accidents
suffered in employment – it was narrow – but now ACC covers all accidents
Ø The difficulties in suing and recovering you face after injury include:
§ Litigation is expensive – access to justice issues
§ Practical problem that your employer will not welcome you back to work
§ Litigation takes a long time – without a remedy for a long time
§ Litigation risk – you may not get a compensation in the end – you have to pay
your costs and their costs
§ Mediation is not legally binding – and it’s not compulsory
§ Efficiency reasons – reduces amount of cases that come in
§ Insolvent defendants – the defendant doesn’t have any money
§ Victim has the burden of proof to show fault – and it is very stressful – may
not be able to pay medical bills
§ There was no evidence to show that this would mean employers engaged in
risky behaviour
§ Damages awarded maybe disproportionate to the severity of the injury
Ø The reasons for having ACC are:
§ Community responsibility for injuries caused by accident – everyone
contributes
§ Comprehensive entitlement – without proof of fault – you don’t have to
worry about burden of proof
§ Complete rehabilitation – get you back to work
§ Realistic compensation – for the whole period of incapacity and recognition
for permanent bodily impairment
§ Administrative efficiency
Ø Principle head – weekly compensation – up to 80% of pre-accident weekly earnings
– if it happens during employment the employer pays the 1st week
Ø Lump sum compensation for permanent impairment – no lump sum for mental
injury
Ø Rehabilitation and contribution to medical expenses – all paid by ACC
Ø Death benefits – funeral & survivor’s grants; weekly compensation for dependent
spouse (60% of deceased’s weekly compensation) & children (20% of deceased’s
weekly compensation) – only for a period of time
Ø If you are self-employed you still pay levies for ACC
Ø S20 of ACC 2001 – personal injury by accident, treatment injury, work-related injury
then you have cover under ACC
Ø S26 definition of personal injury means:
- Death of person
- Physical injury
- Mental injury suffered because of physical injury
- Damages to replacement of any body parts by prosthetics
Ø S26 (2) – personal injury does not include personal injury caused wholly or
substantially by a gradual process, disease, or infection
, Ø S26 (3) – heart attacks and strokes are excluded unless they are a treatment injury or
work-related (where you are doing something abnormal at work)
Ø S27 – mental injury is clinically significant behavioral, cognitive, or psychological
dysfunction – it needs to be diagnosed
ACC v Ambros (2007)
Ø ACC is for distributive justice – it is a social contract
Ø The purpose of the ACC is to provide public good – minimizing incidents of injury and
reducing economic, social and personal costs
ACC Act – Accident Definition
Ø Accident is defined as –
§ Specific event - not gradual
§ Application of force or twisting or evasion of force
§ Inhalation/ingestion
§ Burn – cannot cover exposure to the elements (such as sun burn)
§ Absorption of chemical – within a defined period of time
§ Just because you have personal injury does not make it an accident – you need
both
Ø Work-related injury
- A single event as opposed to gradual process
- That is sudden or a direct outcome of a sudden event or series of events
- The person experiences, sees or hears the event directly – is in close proximity
and are either involved or witness to it
- The event can be reasonably expected to cause mental injury
Ø It is not experiencing event through secondary source or work stress
Ø S30 – some diseases are covered if they are work-related – designed to cover
industrial cases – such as asbestos cases – inhaling from work – you have to show it
was caused due to work – some diseases are automatically covered
Ø All those automatically covered are shown in schedule 2
Ø If you get injured travelling to or from work and transport is paid by employer, you
are covered by ACC
Pure Mental Injury
Queenstown Lakes District v Palmer (1999)
Ø They are doing a shot-over jet – it capsizes, and Mrs. Palmer drowns – Mr Palmer
watches all this and is traumatized – post traumatic disorder – he suffered no
physical injury
Ø The only proceedings barred are those in relation to the person covered by the
scheme – he did not have any personal injury which caused the mental injury – so he
is not barred by the act to bring proceedings
Ø Should not remove the access to courts lightly, purpose is to deny double recovery
not to deny cover at all – he was entitled to bring damages of $150,000
Ø Pure mental injury is not covered by ACC – Palmer is seeking mental injury caused
to him by the negligence of the defendants
,Treatment Injury
Allenby v H (2012)
Ø Women went to sterilization – doctor was negligent, and she gets pregnant – she
suffers a lot of loss of having a child
Ø The court holds she in fact did have a treatment injury – ACC did cover this – and she
could not claim under torts
Ø If, however, the purpose of the treatment was to prevent pregnancy and it was not
achieved – it is similar to forgetting to remove a tumor and cause significant change
to anatomy – which causes pain – and for that reason she has cover under ACC
Exemplary Damages
Couch v AG (2010)
Ø Exemplary damages are not barred
Ø Couch claimed exemplary damages for injury she had suffered – because of having
the junior officer conduct him and not telling RSA of the criminal history
Ø Exemplary damages are not barred – she did get a payout – she got $85,000 – but
nowhere near what you get in the USA
, Battery
Ø Battery is an act intentionally applying force to the body of another without that
person’s consent or lawful justification
Ø You do not need to show any harm was caused
Ø You can gain damages without injury such as – spitting on a person, wrongfully
putting handcuffs on someone – taking fingerprints – searching without consent
Development of the Tort of Battery
Cole v Turner (1704)
Ø Historical position – the least touching out of anger is a battery
Ø Touching implies physical contact – so shooting someone is still a battery today but
you did not touch them
Ø The common law had to develop – Trump groping someone is considered a battery
today – he did not do it out of anger
Letang v Cooper (1965)
Ø Woman sunbathing at a place also used as a carpark – and a person drives over her
legs
Ø Now we distinguish between battery and negligence on the basis of whether it was
intentional or unintentional
Beals v Howard (1960)
Ø Kids climbed up a tree and threw rocks a man’s house – the man came out and shot
a child which blinded the child
Ø The plaintiff has the onus of proof to show there was intention to shoot the gun
Wilson v Pringle (1987)
Ø Two boys are running – and on decides to pull the backpack of another – when the
bag is pulled the boy wearing it injures his hip and brings an action in battery
Ø The boy defense was that he did not intend to hurt the boy – but this failed as the
intention of doing the act is all that is needed
Ø No need to show injury was intended
Collins v Wilcock (1984)
Ø The police officer grabs her shoulder and physically pulls her to talk to her – and the
woman is arrested for scratching the police officer
Ø Battery means everyone is protected against any physical form of molestation
Ø There are however exceptions to such a broad rule – such as to prevent crime, self-
defense
Ø A new exception is when the touching occurred in the course of everyday life – as
people have consented by being in society and exposing themselves to society –
whether it is reasonably necessary
Ø Police officer’s grabbing went beyond reasonable – as had she done just a tap it
would have be fine
Accident Compensation Scheme (ACC)
Ø It started in 1974 – Woodhouse Report – this was mainly to discuss accidents
suffered in employment – it was narrow – but now ACC covers all accidents
Ø The difficulties in suing and recovering you face after injury include:
§ Litigation is expensive – access to justice issues
§ Practical problem that your employer will not welcome you back to work
§ Litigation takes a long time – without a remedy for a long time
§ Litigation risk – you may not get a compensation in the end – you have to pay
your costs and their costs
§ Mediation is not legally binding – and it’s not compulsory
§ Efficiency reasons – reduces amount of cases that come in
§ Insolvent defendants – the defendant doesn’t have any money
§ Victim has the burden of proof to show fault – and it is very stressful – may
not be able to pay medical bills
§ There was no evidence to show that this would mean employers engaged in
risky behaviour
§ Damages awarded maybe disproportionate to the severity of the injury
Ø The reasons for having ACC are:
§ Community responsibility for injuries caused by accident – everyone
contributes
§ Comprehensive entitlement – without proof of fault – you don’t have to
worry about burden of proof
§ Complete rehabilitation – get you back to work
§ Realistic compensation – for the whole period of incapacity and recognition
for permanent bodily impairment
§ Administrative efficiency
Ø Principle head – weekly compensation – up to 80% of pre-accident weekly earnings
– if it happens during employment the employer pays the 1st week
Ø Lump sum compensation for permanent impairment – no lump sum for mental
injury
Ø Rehabilitation and contribution to medical expenses – all paid by ACC
Ø Death benefits – funeral & survivor’s grants; weekly compensation for dependent
spouse (60% of deceased’s weekly compensation) & children (20% of deceased’s
weekly compensation) – only for a period of time
Ø If you are self-employed you still pay levies for ACC
Ø S20 of ACC 2001 – personal injury by accident, treatment injury, work-related injury
then you have cover under ACC
Ø S26 definition of personal injury means:
- Death of person
- Physical injury
- Mental injury suffered because of physical injury
- Damages to replacement of any body parts by prosthetics
Ø S26 (2) – personal injury does not include personal injury caused wholly or
substantially by a gradual process, disease, or infection
, Ø S26 (3) – heart attacks and strokes are excluded unless they are a treatment injury or
work-related (where you are doing something abnormal at work)
Ø S27 – mental injury is clinically significant behavioral, cognitive, or psychological
dysfunction – it needs to be diagnosed
ACC v Ambros (2007)
Ø ACC is for distributive justice – it is a social contract
Ø The purpose of the ACC is to provide public good – minimizing incidents of injury and
reducing economic, social and personal costs
ACC Act – Accident Definition
Ø Accident is defined as –
§ Specific event - not gradual
§ Application of force or twisting or evasion of force
§ Inhalation/ingestion
§ Burn – cannot cover exposure to the elements (such as sun burn)
§ Absorption of chemical – within a defined period of time
§ Just because you have personal injury does not make it an accident – you need
both
Ø Work-related injury
- A single event as opposed to gradual process
- That is sudden or a direct outcome of a sudden event or series of events
- The person experiences, sees or hears the event directly – is in close proximity
and are either involved or witness to it
- The event can be reasonably expected to cause mental injury
Ø It is not experiencing event through secondary source or work stress
Ø S30 – some diseases are covered if they are work-related – designed to cover
industrial cases – such as asbestos cases – inhaling from work – you have to show it
was caused due to work – some diseases are automatically covered
Ø All those automatically covered are shown in schedule 2
Ø If you get injured travelling to or from work and transport is paid by employer, you
are covered by ACC
Pure Mental Injury
Queenstown Lakes District v Palmer (1999)
Ø They are doing a shot-over jet – it capsizes, and Mrs. Palmer drowns – Mr Palmer
watches all this and is traumatized – post traumatic disorder – he suffered no
physical injury
Ø The only proceedings barred are those in relation to the person covered by the
scheme – he did not have any personal injury which caused the mental injury – so he
is not barred by the act to bring proceedings
Ø Should not remove the access to courts lightly, purpose is to deny double recovery
not to deny cover at all – he was entitled to bring damages of $150,000
Ø Pure mental injury is not covered by ACC – Palmer is seeking mental injury caused
to him by the negligence of the defendants
,Treatment Injury
Allenby v H (2012)
Ø Women went to sterilization – doctor was negligent, and she gets pregnant – she
suffers a lot of loss of having a child
Ø The court holds she in fact did have a treatment injury – ACC did cover this – and she
could not claim under torts
Ø If, however, the purpose of the treatment was to prevent pregnancy and it was not
achieved – it is similar to forgetting to remove a tumor and cause significant change
to anatomy – which causes pain – and for that reason she has cover under ACC
Exemplary Damages
Couch v AG (2010)
Ø Exemplary damages are not barred
Ø Couch claimed exemplary damages for injury she had suffered – because of having
the junior officer conduct him and not telling RSA of the criminal history
Ø Exemplary damages are not barred – she did get a payout – she got $85,000 – but
nowhere near what you get in the USA
, Battery
Ø Battery is an act intentionally applying force to the body of another without that
person’s consent or lawful justification
Ø You do not need to show any harm was caused
Ø You can gain damages without injury such as – spitting on a person, wrongfully
putting handcuffs on someone – taking fingerprints – searching without consent
Development of the Tort of Battery
Cole v Turner (1704)
Ø Historical position – the least touching out of anger is a battery
Ø Touching implies physical contact – so shooting someone is still a battery today but
you did not touch them
Ø The common law had to develop – Trump groping someone is considered a battery
today – he did not do it out of anger
Letang v Cooper (1965)
Ø Woman sunbathing at a place also used as a carpark – and a person drives over her
legs
Ø Now we distinguish between battery and negligence on the basis of whether it was
intentional or unintentional
Beals v Howard (1960)
Ø Kids climbed up a tree and threw rocks a man’s house – the man came out and shot
a child which blinded the child
Ø The plaintiff has the onus of proof to show there was intention to shoot the gun
Wilson v Pringle (1987)
Ø Two boys are running – and on decides to pull the backpack of another – when the
bag is pulled the boy wearing it injures his hip and brings an action in battery
Ø The boy defense was that he did not intend to hurt the boy – but this failed as the
intention of doing the act is all that is needed
Ø No need to show injury was intended
Collins v Wilcock (1984)
Ø The police officer grabs her shoulder and physically pulls her to talk to her – and the
woman is arrested for scratching the police officer
Ø Battery means everyone is protected against any physical form of molestation
Ø There are however exceptions to such a broad rule – such as to prevent crime, self-
defense
Ø A new exception is when the touching occurred in the course of everyday life – as
people have consented by being in society and exposing themselves to society –
whether it is reasonably necessary
Ø Police officer’s grabbing went beyond reasonable – as had she done just a tap it
would have be fine
