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1. Is there a personal injury?
s 26 Personal injury S 21 - Cover for mental injury caused by certain criminal acts (1) Personal injury means (1) Cover for personal injury that is mental injury if (a) Death (a) Suffered in or out of NZ (b) Physical injuries including a strain or a sprain (b) Caused by an act performed by another person (c) Mental injury from physical injuries (c) An act of kind in (2) (d) Mental injury in circumstances of s 21 (2) (1)(c) applies if (da) Work related mental injury in circumstances of s 21B (a) Performed on/with/in relation to the person (a) Damages (not wear and tear) to dentures/prostheses that replace a (b) Is performed part of the human body. 1) In NZ or; 2) Outside NZ on/with/in relation to a person ordinarily resident in S 27 Mental injury NZ when Act is performed Mental injury means a clinically significant behavioural, cognitive or (c) Is within description of offence listed in Sch 3. psychological dysfunction (3) Irrelevant whether person ordinarily resident in NZ on date mental injury is suffered S 21B - cover for work-related mental injury (4) S 36 determines how (3) is determined (1) Cover for personal injury that is work-related mental injury if (5) It is irrelevant that: (a) Suffered in/outside of NZ after 2008 (a) No person can (/has) be(/en) charged with or convicted of the offence; (b) Of kind in (2) or (2) (1)(b) applies to event that (b) The alleged offender is incapable of forming criminal intent (a) Person experiences/sees/hears directly in circumstances of s 28(1) S 28 Work related personal injury (b) could reasonably be expected to cause mental injury (1) Work related PI is a PI that a person suffers (c) Occurs (a) Where at any place for purposes of employment, including e.g. Place that 1) In NZ itself moves, or through which a claimant moves 2) Outside NZ to person ordinarily resident in NZ when event (b) While he or she is having a break from work for meal/rest/refreshment at occurs place of employment (3) Irrelevant whether person ordinarily resident in NZ on date mental injury (c) While he or she is travelling to and from work if an employee and if car is suffered (i) Is provided by employer; and (4) S 36 determines how (3) is determined (ii) Is provided for purpose of transporting employees (5) A person experiences/sees/hears an event directly if that person (iii) Is driven by employer/at direction of employer (a) Is involved in or witnesses the event himself; and (6) Does not include PI where occurs at place in (1), is of type in s 21, and person (b) Is in close physical proximity elects to have PI regarded as non-work injury. (6) To avoid doubt, does not experience if through a secondary source (e.g. (7) Is irrelevant to whether person suffered work related PI if he TV, pictures, radio, telephone) (a) Was acting in contravention of Act/regulations/instructions or absence of (7) Event instructions; or (a) Means (b) Was working under an illegal contract; or (i) Sudden event; or (c) Was indulging in/was victim of misconduct, skylarking or negligence; or (ii) Direct outcome of sudden event (d) May have been victim of force of nature (b) Includes a series of events that (i) Arise from the same cause/circumstance; and (ii) Together comprise a single incident/occasion; but S 30 s 20: (c) Does not include a gradual process. (2) work-related GP/D/I: (1) A person is covered for a PI if
3. Is it PI which receives cover under the act?
2. Do any exclusions apply?
(a) Employment enviro w property (P); (a) Suffered in NZ after 2002; and S 26 Personal injury does not include: (b) PI is of the type in s 26(1)(a)-(e); and (b) P causes PI, not found in outside;---
(2) wholly/substantially GP/D/ I unless 20(2)(e)-(h) (work /treatment) (c) Is described in any of paragraphs in (2) (c) ^risk for workers c.f. Non workers. (3) cardio vascular episode unless of kind in s 20(2)(i) or (j) (2) (1)(c) applies to personal injury that is: (4) (a)wholly/substantially by ageing process (b)wear on teeth/dentures (a) caused by an accident (b) treatment injury suffered by the person (c) consequence of treatment for another PI for which the person has cover (d) work-related GP/D/I suffered by the person s 20 (e) GP/D/I that is treatment injury (1) A person is covered for a personal injury if (f) GP/D/I consequential on personal injury which is covered (a) Suffered in NZ after April 2002; (g) GP/D/I consequential on treatment injury which is covered (h) A cardio/cerebro vascular treatment injury suffered Outside NZ but ordinarily resident and eligible ss 16, 17, 22, 23 (i) A cardio/cerebro-vascular personal injury under s 28(3) S 28(3): abnormal/excessive physical effort in employment
1. Minimum lump sum is $2.5k if 10% impairment, max $100k if >80%
2. 64 funeral grant (< $4.5k) Schedule 1
3. Survivor's grant (4.7k to spouse, $2.4 to dependants)
1. Appropriate cost of treatment
4. 60% earnings to spouse if dead -->5 years/not looking after dependants.
32. Weekly compensation: 80% of earnings for earners (Ryan v ACC)
4. Geographical requirements met?
5. Entitlements if covered?
46. Max = $1400
54. Lump sum (perm impairment) if alive, >10% whole person impairment. Physical injury Harrild: "legislative policy not to be undermined by ungenerous/niggardly approach to scope of cover" - Elias CJ ACC v D: Unwanted pregnancy not PI; requires harm/damage, statutory scheme (not common law) is starting point to assess. Telecom RSI cases: RSI not PI; pain is a syndrome, functional deficiency not enough to establish injury, without clear PI no causal link possible to be established.
Treatment Injury Exception
S 25 (1) Accident means (a) (series of ) Event(s) (i) external force (including gravity)/resistance;
Section 32 (1) Treatment injury is a PI that is (a) Suffered seeking/receiving T from health professional, (b) caused by T [ Ambros]
(b) Not necessary part/ordinary consequence of T, (knowledge, underlying)
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