Personal Injury Litigation - a Long-Forgotten Area of Practice By Sir Ian Barker*
April Fool’s Day 1974 was an important date in New Zealand’s social and legal history. For that was when the Accident Compensation (ACC) legislation came into existence, ushering in a new system of compensation for all accident victims without requiring proof of fault on another’s part for death or personal injury. A corollary was to forbid all actions in courts seeking damages for personal injury or the death of a family member. Claims for any personal injury suffered as the result of negligence or some breaches of statutory duty on the part of another - whether individual or corporate, as well as for the financial loss to dependents incurred as a result of death caused by negligence, were all barred by the ACC legislation. Causes of action accruing prior to 1 April 1974 were allowed to run their course. Consequently, it took some years before all preACC cases worked their way out of the court system. Personal injury cases comprised the bulk of civil litigation in the then Supreme Court before ACC. Contract and tort claims as well as family protection claims featured predominantly in the remainder of causes litigated. No competition cases, no financial regulatory cases, no relationship property cases. Those species of litigation all were to appear in the years after 1974. But lawyers are a resilient lot. The pragmatist might say that these later additions to the litigator’s quiver helped assuage the case-load diminution brought about by ACC, although, as with any new legislation, there were destined to be many
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arguments about the scope and interpretation of a novel statute. A lot could be written about the genesis of ACC in the eponymous Woodhouse Report, an earlier report on Absolute Liability in Motor Accident Cases and the profession’s reaction to what many of its members saw as a measure which would decrease their income. That is not the purpose of this article and anybody interested in the profession’s views is referred to the report of a session at the 1969 Rotorua Law Conference in 1969 NZ Law Journal at pages 297-313. Suffice to say that quite a few lawyers thought the proposals in the Woodhouse Report worthwhile whilst a sizeable section opposed and another echelon was indifferent. The scheme as proposed urged that cover be provided for permanent disabling illness but politicians have never as yet grasped that particular nettle. The argument that a drunk or a person “high” on cannabis, disabled in a motor accident where that person was wholly at fault, could receive accident compensation when an innocent law-abiding citizen who contracted some permanent disabling medical condition could not, has yet to be addressed by legislators. Sports injuries were covered by the scheme and, I believe, have cumulatively cost the ACC a lot of money over the years. Nor shall I in this article record the iterations of political thinking which preceded the 1974 enactment nor the changes made over the years - particularly in the Muldoon era - to the
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