LAWS301 Lecture Notes
Part Two: Property based torts
ACC.............................................................................................................................................................. 2
THE EFFECT OF S 317 IN RELATION TO TORTS................................................................................................................2
Statutory bar on proceedings for personal injury...........................................................................................2
Personal injury.................................................................................................................................................2
Bringing proceedings for exemplary damages................................................................................................3
THE PHILOSOPHY BEHIND S 317...............................................................................................................................4
The Woodhouse Report...................................................................................................................................4
The Accident Compensation Scheme as a "Social Contract"...........................................................................4
McGougan.................................................................................................................................................................. 5

1 ACC
Lecture 34: (04/08/20)

The effect of s 317 in relation to torts
Statutory bar on proceedings for personal injury
Section 317 Proceedings for personal injury
(1) No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of— (a) personal injury covered by this Act; or (b)
personal injury covered by the former Acts.
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Bars any right to sue for damages arising directly or indirectly out of personal injury covered by the Act.
Thus, a claimant may not rely on the law of torts - and most relevantly, the tort of negligence -
to seek damages for personal injury that is covered by the Act.
Whether nor not the law of torts continues to be available comes down to whether the claimant has cover for the personal injury, and whether the proceedings are for damages arising out of the personal injury.

In return for barring the claimant's right to sue, the Act offers an entitlement to claim compensation under the Accident Compensation Scheme (ACS).
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A claimant's right to compensation depends on whether personal injury is covered by the Act.
If it is covered, the claimant may be entitled to a range of entitlements, including rehabilitation,
compensation for loss of earnings, and lump sum compensation for permanent impairment.

Personal injury
The personal injury must be of a kind covered by the Act, and it must have been sustained in the prescribed circumstances.
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Under s 20, the personal injury must be of a kind described in s 26(1)(a), (b), (c) or (e), and it must have been sustained in the circumstances described in s 20(2).
For the purposes of s 20, s 26(1) includes death, physical injuries (including, eg, a strain or a sprain), mental injury suffered by a person because of physical injuries, damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.

There is cover provided the personal injury was (s 20(2)):
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Caused by an accident to the person (see s 25 on the meaning of "accident"),
Treatment injury suffered by the person,
Consequence of treatment for personal injury, or
Caused by a work-related gradual process, disease, or infection suffered by the person.

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