LAWS1061 Torts

Albert Khouri

No fault compensation in New Zealand: Harmonizing injury compensation, provider accountability and patient safety
By: Marie Bismark and Ron Paterson (Purple Book pg105) Examines the idea of no fault compensation, using New Zealand as an example No fault compensation is a system where people injured in negligence do not have the right to sue the tortfeasor, rather, they claim compensation for their injures from a government funded organisation (The Accident Compensation Corporation is the one in NZ). This removes the fault out of torts Many working benefits to this system: o Sometimes injured parties dont qualify for tort-based damages because there has been no negligence o The no fault system compensates victims quickly (between a week to the statutory limit of 9 months) and equitably, offering accountability mechanisms focused on ensuring safer care rather than assigning individual blame o Financed through tax payments and an employment levy Victims can be compensated, under this system, in 4 categories: 1. Treatment and rehabilitation costs 2. Compensation for loss of earnings 3. Lump sum compensation for permanent impairment 4. Support for dependents (when the victim dies) The affordability of the system is attributed to 4 main factors which are seen as beneficial, but can also be considered as detrimental o Strong social security in NZ: Because of free health care and subsidized pharmaceuticals, compensation rewards are much lower than say, the US, who have to factor in higher medical costs to cover these o Compensation awarded is generally lower: This can be seen as beneficial for affordability, but not so much for the victim, who only receives a fixed amount for economic loss, and can only recover for non economic loss if the injury is permanent. o Most victims dont even claim: as they are unaware they have even suffered an adverse event??? o Low administrative costs: No legal fees. But this is shit for lawyers who obvs want to make money. Problems with the system: o Accountability: There is an argument that no fault means no one will be held accountable for any accident/negligent incident, and this is concerning, especially in terms of medical malpractice if you arent held liable, there is no motivation to resolve your negligent behaviour o Stay at home mums and the elderly, who arent employed, are severely disadvantaged as they cant claim for loss of earnings.

LAWS1061 Torts Moments of carelessness and massive loss By: Jeremy Waldron (Purple booklet pg111)

Albert Khouri

This guy is a bit of a gronk. He makes 1 point in the whole article, which is ridiculous, and tries to back it up by twisting other academics opinions that dont even relate to torts. His point is that if A and B both drive negligently at different times (he uses the example that they are both driving through a city and take their eyes off the road to look at a shop that has a sale on), but only B hits C who is on his motorbike, why should A get off scot-free? o Because of causation, obviously. As negligence did not cause Cs harm. But then he goes on to make a few points about random shit- here they are: o Annulment theory prescribes that tort law should sometimes only operate to annul unlawful gains. But B does not gain anything from Cs harm, so what is he annulling in the payment of damages to C? o Coleman: The loss must always fall on someone. By not imposing it on the injurer, you are opposing it on the injured, and vice-versa. o Coleman: Tort law is either unjust to the victim or the injurer, and sometimes to both o Based on a fortuitous moment of carelessness (that doesnt result in an accident), it is slightly less unfair to place the blame on B then on A. Waldrons argument is that this is a very arbitrary and unfair singling out, especially because both drivers were negligent. But it is pretty obvious it is not arbitrary when you consider causation Nonetheless he still tries to argue his point o Uses Lewis model of the law is a lottery, which originally applies to criminal law. If a murderer attempts to shoot someone to kill, but fails, he will not get life, therefore a penal lottery exists. Attempts to link this to tort law, rebutting the notion that the current causation model is fair, says it all comes down to luck, like a lottery. One valid point that he does make which is sort of agreeable: o He also criticises the NZ system, saying that by imposing taxes on everyone, then some people are contributing to compensating losses when they arent contributing to the injury, wheres the personal responsibility in this?

LAWS1061 Torts

Albert Khouri

Love labours cost: The High Court decision in Van Gervan v Fenton By: Regina Graycar (Purple Booklet pg123) Slightly feminist argument valid points both for and against here Analyses the judgment (and dissenting judgment) in Van Gervan v Fenton in applying Griffiths v Kerkemeyer damages Majority judgment: o When a plaintiff is so injured that he requires a full time care attendant, and his spouse quits her job to take on such full tie care, the award of damages should not be for the loss/forfeiture of the wifes income this should be used as a mere guide/starting point for the quantification of damages. o Here, the plaintiff could no longer be left unattended for more than one hour. He would turn appliances on and forget to turn them off, cause himself harm etc. The carer could not leave the house for more than one hour at a time. o Rather, Kerkemeyer damages should apply which reasonable adapt the market value of the services that are required The dissent o Based on the premise that why pay for services that you ordinarily would receive anyway? o Contrary to the feminist notion. o The dissenting joint judgment of Deane and Dawson basically argues that had the plaintiff not been married, that kerkemeyer damages should be awarded, but the fact his wife already provided most of these services, the engagement of an outside agent would be unnecessary so such damages are irrelevant. Why the dissent is invalid: o The assumption that a plaintiff who has a wife, already has a carer is no longer acceptable o The presumption that his wife will sacrifice her paid work, social freedom and general amenity to meet the post accident need of her husband reinforces an out-dated view of marriage that is no longer viable, and the courts should not promote this.