Law of Torts Notes
Lecture 1 – Introduction
Ø “Tortus” – crooked or twisted
Ø Tort is a civil wrong, other than a breach of contract or a breach of trust, which is
remediable by way of an action for unliquidated damages
Ø Unliquidated damages are damages which are unspecified – such in contracts there
are liquidated damages as if you breach it you owe this amount
Ø Crime v Tort - state is a party v private litigants
- So similar to the criminal law, the police will step in and bring the case to court
on behalf of the victim
Ø Criminal law part of public law
Ø Tort is private law, enforced in civil proceedings
Ø Primary purpose of criminal law is to punish/deter, not concerned with
compensating victim
Ø Torts aims to put the person in the position they would have been in but for the loss
Ø Sometimes conduct can be both criminal & tortious, but elements may be different
Lecture 2 – Introduction to Torts and ACC
Ø Private litigants can be trustees, corporations and individuals
Ø Burden of proof is different – balance of probabilities – much
lower than in a criminal case
Ø In tort the elements are found in case law – with torts you can
get compensation as the victim
Contracts v Tort
Ø Contract protects promises and torts protects interests
Ø Contract is voluntarily assumed – torts is imposed by law –
obligations imposed by the law
Aspects of Law of Torts
Ø State of mind of defendant – malicious, intentional, negligent and innocent – we
focus mainly on intentional
Ø Intentional – defendant acts in a way that a particular result will come out – desiring
that result or being reckless about when it comes out
Ø Negligence – defendant does not intend to cause harm but acts carelessly because
he/she should have foreseen and prevented the harm
Ø Innocent – conduct causing the harm is neither intentional nor negligent – liability is
strict liability
Ø Aims of tort law – compensation, corrective justice, specific and general deterrence,
punishment and economic efficiency
Ø ACC levies comes from – general taxes, employer levies, transport and vehicle levies
Ø Effect of insurance – blunts incentives to be careful; incompatible with deterrence
aim, but is with compensatory aim
, Ø No civil action for compensatory damages for personal injury by accident in NZ – as
with claiming exemplary damages it punishes the wrong-doer twice – as one in
criminal law and then in torts
Ø Can be awarded damages for property damage and other economic losses
Ø Analysing Intentional Torts
§ What is the interest at stake here?
§ What is/are the tort action/s that protects the interest?
§ What are the elements of the tort?
§ Are all of those elements present?
§ If so, does the defendant have a legitimate defense?
§ If not, what remedy is the Court likely to give?
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
Lecture 3 – ACC
Ø ACC will not have a deterrent effect as the wrong doer does not have to pay for the
harm that is caused
Ø Payouts in USA are so high is because jury decides the damages awarded to the
victim – this means pulling on the heartstrings of the jury and you get a huge award
Ø Exemplary damages are awarded more often – and they also have troubled damages
which is 3x the damages award
Ø ACC v Ambros (2007) – 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
Ø Deterrence is strongest with automobile accidents – and weakest in respect to
environmental accidents
Ø The levies system seems to be a better deterrence than the tort system
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
Ø Queenstown Lakes District v Palmer (1999) – 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 No. 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
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
Lecture 4 – ACC – Continued – Battery
Ø Mental injury is covered when it is caused by physical injury – certain work-related
accidents – when it is due to some kind of crime
Ø If a disease is caused by a gradual process at work – you can be covered if you fit
under the schedule – otherwise need to show causation
Ø S32 – Treatment injury – cover if you have a treatment injury – personal injury
suffered by a person seeking treatment from 1 or more registered health
professionals or receiving direction from health professional and caused by
treatment and not a necessary or ordinary consequence of treatment
Ø Registered health professional listed under s6 (1)(a)
Ø If you are at a public health care – and there is a shortage of supplies – and you
suffer a personal injury – you are not covered by the act
Ø If you go, get treatment for something and it becomes worth it is not treatment
injury
Ø Allenby v H (2012) – 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 The ACC that any damage caused by the rape is an injury – so it should follow that
any damage caused to the vagina during the treatment is also an injury
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
Ø Couch v AG (2010) – exemplary damages are not barred – William was convicted of
robbery and was released on parole – he was allocated to a new officer – who
allowed him to take employment as RSA
Ø Where there were large quantities of alcohol and cash available – and they were not
notified of his criminal record – William arrived one morning with accomplices and
stole property while killing 3 members of staff
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
Lecture 1 – Introduction
Ø “Tortus” – crooked or twisted
Ø Tort is a civil wrong, other than a breach of contract or a breach of trust, which is
remediable by way of an action for unliquidated damages
Ø Unliquidated damages are damages which are unspecified – such in contracts there
are liquidated damages as if you breach it you owe this amount
Ø Crime v Tort - state is a party v private litigants
- So similar to the criminal law, the police will step in and bring the case to court
on behalf of the victim
Ø Criminal law part of public law
Ø Tort is private law, enforced in civil proceedings
Ø Primary purpose of criminal law is to punish/deter, not concerned with
compensating victim
Ø Torts aims to put the person in the position they would have been in but for the loss
Ø Sometimes conduct can be both criminal & tortious, but elements may be different
Lecture 2 – Introduction to Torts and ACC
Ø Private litigants can be trustees, corporations and individuals
Ø Burden of proof is different – balance of probabilities – much
lower than in a criminal case
Ø In tort the elements are found in case law – with torts you can
get compensation as the victim
Contracts v Tort
Ø Contract protects promises and torts protects interests
Ø Contract is voluntarily assumed – torts is imposed by law –
obligations imposed by the law
Aspects of Law of Torts
Ø State of mind of defendant – malicious, intentional, negligent and innocent – we
focus mainly on intentional
Ø Intentional – defendant acts in a way that a particular result will come out – desiring
that result or being reckless about when it comes out
Ø Negligence – defendant does not intend to cause harm but acts carelessly because
he/she should have foreseen and prevented the harm
Ø Innocent – conduct causing the harm is neither intentional nor negligent – liability is
strict liability
Ø Aims of tort law – compensation, corrective justice, specific and general deterrence,
punishment and economic efficiency
Ø ACC levies comes from – general taxes, employer levies, transport and vehicle levies
Ø Effect of insurance – blunts incentives to be careful; incompatible with deterrence
aim, but is with compensatory aim
, Ø No civil action for compensatory damages for personal injury by accident in NZ – as
with claiming exemplary damages it punishes the wrong-doer twice – as one in
criminal law and then in torts
Ø Can be awarded damages for property damage and other economic losses
Ø Analysing Intentional Torts
§ What is the interest at stake here?
§ What is/are the tort action/s that protects the interest?
§ What are the elements of the tort?
§ Are all of those elements present?
§ If so, does the defendant have a legitimate defense?
§ If not, what remedy is the Court likely to give?
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
Lecture 3 – ACC
Ø ACC will not have a deterrent effect as the wrong doer does not have to pay for the
harm that is caused
Ø Payouts in USA are so high is because jury decides the damages awarded to the
victim – this means pulling on the heartstrings of the jury and you get a huge award
Ø Exemplary damages are awarded more often – and they also have troubled damages
which is 3x the damages award
Ø ACC v Ambros (2007) – 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
Ø Deterrence is strongest with automobile accidents – and weakest in respect to
environmental accidents
Ø The levies system seems to be a better deterrence than the tort system
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
Ø Queenstown Lakes District v Palmer (1999) – 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 No. 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
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
Lecture 4 – ACC – Continued – Battery
Ø Mental injury is covered when it is caused by physical injury – certain work-related
accidents – when it is due to some kind of crime
Ø If a disease is caused by a gradual process at work – you can be covered if you fit
under the schedule – otherwise need to show causation
Ø S32 – Treatment injury – cover if you have a treatment injury – personal injury
suffered by a person seeking treatment from 1 or more registered health
professionals or receiving direction from health professional and caused by
treatment and not a necessary or ordinary consequence of treatment
Ø Registered health professional listed under s6 (1)(a)
Ø If you are at a public health care – and there is a shortage of supplies – and you
suffer a personal injury – you are not covered by the act
Ø If you go, get treatment for something and it becomes worth it is not treatment
injury
Ø Allenby v H (2012) – 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 The ACC that any damage caused by the rape is an injury – so it should follow that
any damage caused to the vagina during the treatment is also an injury
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
Ø Couch v AG (2010) – exemplary damages are not barred – William was convicted of
robbery and was released on parole – he was allocated to a new officer – who
allowed him to take employment as RSA
Ø Where there were large quantities of alcohol and cash available – and they were not
notified of his criminal record – William arrived one morning with accomplices and
stole property while killing 3 members of staff
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
