High Court reaffirms New Zealand's stance on suing for personal injury

Introduction and summary In McGougan and Dingle v Depuy International Limited [2016] NZHC 2511 the High Court was required to determine the scope of the bar against claims for personal injury in s 317(1) of the Accident Compensation Act 2001 (ACA). The particular question for consideration was whether a person could bring a claim for compensatory damages (i.e. sue for damages flowing from personal injury) in New Zealand, where they have cover under the ACA, but where the conduct giving rise to the claims occurred outside of New Zealand.

Collins J decided that the plain words of the ACA, together with its purpose, precluded the plaintiffs from bringing their claim for compensatory damage. The fact was that the claimants had cover under the clear terms of the ACA, which was accepted by all parties. The bar was therefore clearly engaged. His Honour reiterated that it remains open for a plaintiff to bring a claim for exemplary damage arising from personal injury in New Zealand. His Honour summarised the position in this way:

[124] One of Parliament's intentions when it passed s 317(1) of the [ACA] was to bar proceedings for personal injury where the plaintiff has cover under the Act. The fact the conduct giving rise to the claim occurred in another jurisdiction does not deflect from Parliament's clear intention. If a plaintiff has cover for personal injury under the [ACA] Parliament intended he or she should not also be able to sue for compensatory damages in relation to his or her personal injury. There is therefore symmetry between the text and purpose of s 317(1) of the [ACA]. [125] The text and purpose of s 317(1) of the [ACA] bars proceedings for compensatory damages in New Zealand courts where the claim arises directly or indirectly out of personal injury covered by the [ACA]. This includes claims where the injury has occurred in New Zealand but the conduct giving rise to the claim occurs outside of this country. This decision highlights the breadth of the bar to compensatory damages under the ACA. Save for the exceptions expressly carved out by Parliament, where an intended plaintiff has cover under the ACA it is almost certain they will be unable to obtain an award of compensatory damages by recourse to New Zealand courts.

Background The facts giving rise to the claim are simple. Depuy International Limited (Depuy) is a company registered in England and, importantly, does not carry on business in New Zealand. It designs and manufactures medical devices. Between July 2003 and August 2010 Depuy designed and manufactured hip implants which 38 New Zealanders received between 2006 and 2009. Of those 38 recipients, three were plaintiffs in the proceeding before the court. After each received their implant, serious issues began to emerge regarding the safety and effectiveness of those implants. Between 2011 and 2012 the plaintiffs underwent...