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Personal Injury in NZ

CL3 Circumstances in which common law actions for damages still allowed

CL3
Circumstances in which common law actions for damages still allowed
To bring a common law damages action in a New Zealand Court one must avoid s 317, which bars proceedings for damages arising directly or indirectly out of personal injury covered by the Act of former Acts, and s 318 which bars proceedings for damages arising directly or indirectly out of personal injury caused by work-related gradual process, disease, or infection that is covered by the Act or former Acts. Note also that where a personal injury is covered by the Act but a claimant is disentitled to cover by the operation of one of the Act’s sections, the s 317 bar on common law actions still applies.
There are three questions that an adviser contemplating damages proceedings should ask. They are as follows.
CL3.01
Personal injury: is the injury a “personal injury”?
Not all injuries come within the definition of “personal injury” in the Act. If the plaintiff’s injury does not come within that statutory definition (for example, nervous shock), then a claim for damages is not barred by s 317 or s 318.
CL3.02
Cover: is the injury a personal injury “covered” under the Act?
Not all personal injuries are covered by the Act. For example, certain personal injuries such as heart attacks and strokes (except in limited circumstances) are not covered by the Act and, therefore, a claim for damages is not barred by s 317 or s 318.
CL3.03
Proceedings for damages not barred by s 317: does the Act or case law still allow the claim for damages?
Some damages proceedings are unaffected by the bar in s 317 or s 318. For example, s 317 expressly states that the section has no application to proceedings arising from:
(a)
Any damage to property;
(b)
Any express term of any contract of agreement; or
(c)
Unjustifiable dismissal of any person.
The Court of Appeal, in cases under the former Acts, also decided that claims for exemplary damages and certain other actions for damages, such as defamation and malicious prosecution, are unaffected by the bar. The right to bring proceedings for exemplary damages is now under s 319.

From Personal Injury in NZ

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