Accident Compensation: What's the Common Law Got to Do with it?

Abstract

The author examines the rather limited nature of legal scholarship relating to the Accident Compensation (ACC) scheme that replaced tort in New Zealand in personal injury cases. He points out that a proper academic approach to the ACC scheme must take into account both the public aspects of that scheme, such as its accountability mechanisms, as well as its private aspects. The author suggests that a more fruitful aspect for inquiry is the degree to which the ACC scheme itself depends on basic common law notions, and the extent to which the inability of the ACC scheme to escape those notions might reveal new insights about compensation schemes more generally. The author examines the use of common law notions in three areas: claims for mental injury, causation in medical misadventure cases, and claims involving coverage for pregnancy or stillbirth. He argues that judges and other decision-makers ought to begin with a principle of integrity in resolving borderline decisions as to whether a claim ought to be within the ACC scheme or not. Such a principle of integrity might start with the most important of the Woodhouse principles, those of comprehensive entitlement and community responsibility, but the integrity principle must also reflect the reality that the New Zealand Parliament has consistently failed to provide for comprehensive entitlement, and in particular that judges and other decision-makers must take seriously the deliberate exclusion of illness from cover.

Keywords: tort, personal injury, accident compensation

JEL Classification: k13