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Once upon a time there was an Australian, Englishman and an American…

Once upon a time there was an Australian, Englishman and an American…. Richard Johnstone. IPRCA 2001: s317. Proceedings for personal injury

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Once upon a time there was an Australian, Englishman and an American…

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  1. Once upon a time there was an Australian, Englishman and an American… Richard Johnstone

  2. IPRCA 2001: s317 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. (2) Subsection (1) does not prevent any person bringing proceedings relating to, or arising from,— (a) any damage to property; or (b) any express term of any contract or agreement (other than an accident insurance contract under the Accident Insurance Act 1998); or (c) the unjustifiable dismissal of any person or any other personal grievance arising out of a contract of service. (3) However, no court, tribunal, or other body may award compensation in any proceedings referred to in subsection (2) for personal injury of the kinds described in subsection (1).

  3. Quaere Can a foreign victim sue in an overseas court? A traffic crash victim? A bungee jumper or a rafter? A secondary victim? A worker suffering a workplace injury or contracting an occupational disease?

  4. Not discussing: A visitor injured on a ship or aircraft Warsaw convention: Civil Aviation Act 1990 A victim of a defective or harmful product

  5. Australia “Choice of law” for foreign (and intra-national) torts is the substantive law of the lex loci delicti Zhang [2002] HCA Place of tort is where the cause of action substantially arose • Victim exposed to asbestos dirt and fibres as lagger in Cambridge, from insulation products made in Australia; NZ law applied Frost [2006] NSW SC • Victim exposed as employee of Tasman Pulp & Paper to asbestos fibres when visiting factories in Malaysia and Belgium, and initially received medical treatment under ACC; place of tort not NZ Puttick [2008] HCA

  6. Australia Does s317 allow proceeding for damages to be taken in a foreign court? “clear that Parliament intended to establish a code that covered the field of conduct in which the place of tort was NZ…”Frost [2006] NSW SC Wording “in any court in New Zealand” reflects Parliament’s inability to proscribe proceedings in foreign courts. Applying s317, under the lex fori, means proceedings cannot be taken for an NZ tort in NSW Frost [2006] NSW SC

  7. Australia Trans-Tasman Court Proceedings and Regulatory Enforcement Agreement (signed 24/07/2008) Supporting legislation to be enacted shortly in NZ and Aust/Simon Power (media release 17/04/2009 A common test of “the more appropriate forum” to determine the jurisdiction: Article 8 Aligned to current NZ test; whereas Aust applies the “clearly inappropriate forum” rule. Quaere: will both countries adopt a common statutory test for international (and intra-national) proceedings? :all proceedings for double locality torts or just NZ v Aust?

  8. United Kingdom “Applicable law” for issues of tort determined under Part III of Private International Law (Miscellaneous Provisions) Act 1995 Proceedings can be instituted in an English court Liability is determined by the law of the place of tort The assessment of damages is a matter of procedure governed by the lex fori : s12. 2002 motor vehicle accident in NSW, UK resident victim sued • damages assessed under English law • future economic loss discount 2.5% applied [not 5% under Motor Accidents Compensation Act NSW] Harding v Wealands [2006] HL

  9. United Kingdom Package Travel Package Holidays & Package Tours Regulations 1992 Statutory right of action against “package organiser” for damage from failure to perform or improper performance of the contract: Reg 15 Property damage (only) compensation may be limited by package contract Bond scheme established Implications?

  10. United States No US reported case considering a NZ tort US choice of law rules are procedural and seek to reconcile differences between the laws of different states Some indication can be derived Position: • Right to institute and serve proceedings for NZ tort • Forum convening will operate as a starting point • “Balance of interests” test will be applied; unlikely plaintiff victim will be denied right to sue and recover compensation

  11. Insurance Motor vehicle policies (commonly) limit indemnity cover to property damage in NZ Public (or General) liability policies indemnify liability for personal injury but exclude “personal injury happening in or instituted against the Insured in North American countries” Points to note: • Businesses must face prospect of overseas actions • Manage exposures by contract (where possible) • Liability insurance needs to reflect the risk profile especially costs to protest any foreign court action taken

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