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 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 legislation and to the entitlements provided in the founding statute which somewhat diminished initial promises. The Act was an international pioneer, as I discovered when asked in 1981 to deliver a paper at a conference of aviation lawyers in Tobago on NZ's bold and unusual scheme. As one might have expected, the audience of mainly American lawyers reacted with wonder and amazement and made confident assurances that such a scheme would never get off the ground in the Land of the Free, home of the gigantic awards for personal injuries and of contingency fees. (Well may you ask what was I doing in a conference of aviation lawyers in the Caribbean? I had been invited because for some years before my appointment to the Bench, I had acted for London underwriters in respect of claims under the Warsaw Convention with an NZ connection, starting with the loss of a laden DC3 passenger aircraft in Samoa in 1970.)

What claims were there?

Injuries caused by motor vehicles were predominant, closely followed by claims by workers against their employers. A plaintiff - whether a passenger in the negligent driver’s vehicle or someone in another vehicle or a pedestrian, cyclist or anyone else injured by a vehicle - could claim in the knowledge that the alleged negligent one was insured.

Every year when one registered a vehicle, the necessary form asked for an indication of which of a large list of insurers one nominated to insure those driving the vehicle against personal injury claims. In those days, there were a lot of insurers from which to select - many of them overseas - based with local offices. The majority pooled the premiums received from registrants which meant that any claim against a nominated insurer would be administered by the Motor Vehicle Third Party Pool and not by the nominated insurer. A few insurers from the list on the registration form did not join the Pool and administered each claim themselves. The most notable of these were the NIMU and the SIMU which had connections with the Automobile Association and sold insurance for property damage for vehicles.

If a vehicle was uninsured under the above system or the alleged negligent motorist was unknown, then one had to sue "The Nominal Defendant". This creature - begotten by the insurers and not by legislation - provided damages awarded against uninsured or unknown negligent drivers but within financial limits. One had to sue The Nominal Defendant under that name and not under the real name of “The State Insurance General Manager” who, under legislation constituting a governmentowned general insurer, was a Corporation Sole. (As an aside: this is a form of corporate identity where a corporation with perpetual succession is one person whose identity changes from time to time but who administers property, real and personal, in the corporate name. Most, like the State Insurance and the Public Trustee, seem to have been abolished with privatisation. I believe the only ones on the current NZ legal landscape are the Roman Catholic Bishops, owning church properties in their individual dioceses under their private Act. Companies and incorporated societies are examples of the other sort of corporation- the corporation aggregate.)

The other fertile source of personal injury claims was the workplace. The Workers’ Compensation legislation made insurance for one’s workers compulsory. If a worker became injured at work (and there were lots of arguments about what that meant), she/he was entitled to a weekly payment and, if permanently suffering an injury set out in a schedule to the enabling statute, to a lump sum calculated on a percentage of a nominated amount. These entitlements were regardless of whether the worker had been to blame for the accident causing the injury or the injury arose out of the worker’s employment or was exacerbated by an existing condition. (Lots of room for argument especially for back injuries or if a worker was on a frolic of his/her own.)

The fruits of a workers’ compensation claim being not notably generous, many workers sued their employer for negligence and/or on the sometimes available ground of breach of statutory duty. The breach of most statutory regulations prescribing safe practice in various work situations qualified as a basis for a tortious cause of action. For example, regulations about wood-working machinery.

Other situations - notably occupiers’ liability - where negligence or personal injury could be alleged - comprised the basis for the remainder of claims.

Claims based on negligence could also be brought by the estate or dependents of a person killed as a result of the alleged negligence under the Deaths by Accident Compensation Act 1952. If the allegedly negligent person were deceased at the time proceedings were issued, then her/ his personal representatives could be sued.

Limitation of Action

The Limitation Act 1950 was a product of its time. It was not as comprehensive or as sensible as its counterpart of today. I doubt whether it would have received, before enactment, the careful treatment and wide consultation that law reform statutes are given nowadays. It mandated that actions for personal injury damages had to be commenced within two years of the cause of action arising. If the claimant were under-age or suffered from a mental disability, the limitation period commenced when the claimant either became of age or ceased to be under a disability.

A claimant who was out of time under this legislation could apply to the Court for leave to file the claim. Not unexpectedly, lawyers for insurers usually opposed applications for leave which were fairly numerous: overlooking a limitation was an oft-experienced example of professional negligence. The court lists and the law reports had a steady diet of applications for leave to bring personal injury proceedings out of time. Results were varied with some judges taking a hard line. But if you had a plausible excuse for the delay and the injury was serious, leave would usually be granted on terms as to costs and prompt filing.

It was easier to miss the limitation deadline if you were suing the Crown which was something that happened frequently since the Post Office, Railways and Forestry were manifestations of the Crown and not separate statutory bodies. That deadline was only one year. Another pesky, bureaucratic requirement of the Crown Proceedings Act was that written notice of an impending claim had to be given to the relevant Crown Department about to be sued. Similar provisions to those just detailed enabled the Court to grant leave to bring proceedings out of time.

Components of claim

For personal injury general damages claims, there were three usual components: a) pain and suffering; b) loss of amenities of life and c) loss of future earnings. For death claims, funeral expenses and the likely loss of future earnings by the deceased which would impact on the deceased’s dependents.

Arguments occurred where the claimant or the deceased had not enjoyed a very stable or remunerative employment record or the claimant’s injury was likely to improve and make working in the future more credible or the claim for pain and suffering was allegedly exaggerated or the claimant or the deceased suffered from or could in the future suffer from a debilitating medical condition completely unrelated to any injury caused by the accident. Back injuries then as now generated many arguments as to their cause.

Special damages were usually less controversial. Loss of earnings, caused by the claimant’s inability to work because of the accident, was often the main item, along with hospital expenses. These were payable if the damages claim succeeded to the extent to which it succeeded. If the award were reduced by contributory negligence, the hospital special damages would be correspondingly reduced.

Experts

Proving a plaintiff’s entitlement to general damages usually meant the provision of evidence of medical condition caused by the accident and a prognosis of likely future consequences. Medical specialists for both plaintiff and defendant were asked to examine the injured one and report to the solicitors commissioning the report. Orthopaedic surgeons were commonly called as medical experts because so many injuries were caused to limbs and backs. These reports provided the basis for settlement discussions on quantum of general damages. Orthopaedic injuries used to give rise to the major debates - particularly whether the injury was as bad as made out or whether and to what extent the injury would lead to an inability to work in the future.

Neurologists opined for neurological injuries and there was often room for argument in that area of medicine. Various other specialists such as ophthalmologists featured, but there was often less room for argument over the plaintiff’s condition.

Various specialist medical practitioners would often reflect their personalities by being optimistic or pessimistic over the extent of a claimant’s permanent disability. The optimists tended to have their opinions sought by defendants’ lawyers - the pessimists by plaintiffs’ lawyers. It was always difficult to get surgeons particularly to give evidence because of operating schedules. When they did come, some were usually excellent presenters of difficult medical information to juries.

The engineering profession provided some experts where evidence was required of faulty machinery or less than optimal working systems

For calculations of future earnings, both for a living claimant and for a deceased person in a claim under the Deaths by Accident legislation) accountants were retained. As with other kinds of experts, two contradictory scenarios were often placed before a jury.

Other experts could be called if required, such as psychiatrists, if a person’s mental health were in issue.

The quarterly fixtures scrum in Auckland saw personal injury jury trials given hearing dates in bulk with the expectation that most would settle - which they did, often at the courtroom door. One tactical decision for counsel was whether to elect a jury or a judge-alone trial.

To get on the jury trial list, the praecipe to set down had to specify and be accompanied by the payment of one day’s jury fees. These were the modest amounts paid to each juror which had to be paid into court for every day of the trial. If one side requested a judge-alone trial, the other side could requisition a jury trial on giving an appropriate notice within a prescribed time. These rules applied to every civil jury trial. Claims for defamation, false imprisonment and malicious prosecution were usual candidates for a jury. Fortunately, current legislation places sensible limits on the right to a civil jury.

The received wisdom of the profession was that juries were better for claimants in personal injury cases. Juries were reputed to be more generous than judges and were more likely to find for a plaintiff in a case where liability might be hard to prove.

Payment into court of the amount of a defendant’s offer was a common defence tactic. The offer was usually pitched cunningly at a level below what the plaintiff hoped to receive, but at a level where it had to be taken seriously. If a lesser amount were recovered at trial, the plaintiff would be likely to pay all the party-and-party costs of trial plus all disbursements like daily jury fees plus witnesses’ expenses for the defendant, as well as paying his or her lawyers.

Civil jury trials took longer than judge alone trials for obvious reasons. The jury considered issues which sought answers on the various allegations of negligence or contributory negligence plus the quantum of damages should negligence be found.

The legal folklore that juries produced a better result for plaintiffs than judge-alone trials was not necessarily true, as I discovered when, in the late 1960s, I was instructed on behalf of a young widow and her baby on a Deaths by Accident claim in the old Napier court before Tompkins, J (the elder) and a jury. Her late husband, whilst working on a remote farm at the end of a remote and tortuous rural Hawkes Bay road, was crushed by his tractor. He lay in a distressed condition until an ambulance arrived. As it was negotiating one of the bends on the precipitous road, the ambulance went off the road and hurtled down a steep bank. The patient was alive at the top but died on impact at the bottom.

The claim was based on the alleged negligent driving of the ambulance driver. Two eminent doctors, one a pathologist and one an emergency medicine specialist considered on the balance of probabilities that the deceased who was a fit young man would have survived his tractor injury and they were prepared to come from Auckland to give evidence for little or no fee. The insurers of the defendant St. John Ambulance had instructed a formidable team of Denis Blundell (knighted on the day before the hearing started) and Rodney Gallen as counsel plus medical specialists with contrary views to those of our people.

Despite the emotional claim of a young widow with a baby left without financial support, the jury answered all the issues relating to the alleged negligence in the negative. Looking back, I figured that a judge-alone trial might have produced a different and favourable result. The jury may have thought that the St. John Ambulance organisation and not the Motor Vehicle Third Party Pool would have had to pay damages. Civil juries were just as inscrutable as criminal juries!

There is a lot more that can be written about personal injury litigation - especially about some of the lawyers who specialised in it. But that will have to await another day.

*Sir Ian Barker has spent 60 years in the law; his first 20 years as an advocate, the next 20 years on the High Court Bench and the last 20 as an arbitrator, including serving as Vice-Chancellor at his alma mater, Auckland University, and teaching at Cambridge.