05 JUN 2015
Allen and others v Depuy International Ltd  EWHC 926 (QB)
Clinical Negligence - Foreign Law - New Zealand Statute - Conflict of Laws
1 April 2015
High Court, Queen's Bench Division
Simler J DBE
The claimants were precluded, by virtue of s 317(1) of the New Zealand Accident Compensation Act 2001, in bringing their claims in England.
The claimants, who were part of a much larger group of New Zealand claimants, claimed damages for personal injury alleged to have resulted from being implanted with defective prosthetic hip implants manufactured in England by the defendant, a company registered in England, but implanted in the course of operations in New Zealand. It was decided that the applicable law for the New Zealand sample claimants was the law of New Zealand. The claimants therefore amended their claims to plead New Zealand law and the defendant subsequently submitted that the claims were precluded by the statutory bar in s 317(1) of the New Zealand Accident Compensation Act 2001 ('ACA').
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The parties agreed that there were two issues for determination. The first was whether s 317 of the ACA was a substantive rule, which had to be applied by the court, or procedural rule, which could be disregarded. The Judge held, looking at the purpose and legislative context of the ACA, that the statutory bar in s 317 had substantive effect. The effect was to remove the right to recover common law compensatory damages for personal injuries, except exemplary, or punitive, damages as the substantive right to bring a common lawclaim had been replaced by cover under the ACA. The rule did not merely deal with remedy, but also with liability, it could not be waived, acted automatically and could not be contracted out of. Therefore the rule was substantive.
The second issue was whether, if the rule is substantive, whether s 317 removed the right of the claimants to compensatory damages as a matter of New Zealand law and whether relevant conduct in New Zealand was required before s 317 applied. The Judge held that conduct of a third party was irrelevant to cover under the ACA and the focus of the ACA was on a person’s injury and the location and/or nationality of the injured person. Therefore, there was no additional conduct requirement under New Zealand law, which was the law applicable in these cases. The statutory bar in s 317(1) of the ACA therefore applied and the claimants who would be covered under the ACA had no right to bring claims in England for compensatory damages.
This case highlights the importance of ensuring claims being brought by claimants from other countries are made under the law in the correct jurisdiction to avoid any claim being struck out or time barred.
Adam Dyl & Jodee Mayer, Anthony Gold