scholarly journals Reflections on the Woodhouse Legacy for the 21st Century

2020 ◽  
Vol 51 (2) ◽  
pp. 295
Author(s):  
Susan St John
Keyword(s):  
21St Century ◽  
Law And Society ◽  
Royal Commission ◽  
Compensation Scheme ◽  
Social Conscience ◽  
Accident Compensation ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission

This lecture commemorates the life of one of our most distinguished judges and citizens, Sir Owen Woodhouse. His compassion, generosity of spirit and social conscience were reflected in his work as President of the Court of Appeal, President of the Law Commission and Chairman of the Royal Commission on Compensation for Injury that recommended a no-fault accident compensation scheme and laid the foundations for the Accident Compensation Corporation (ACC) scheme. He made an immense contribution to New Zealand's law and society.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

scholarly journals THE DOCTRINE OF BENEFIT AND BURDEN: REFORMING THE LAW OF COVENANTS AND THE NUMERUS CLAUSUS “PROBLEM”

2018 ◽  
Vol 77 (1) ◽  
pp. 72-96
Author(s):  
Chris Bevan
Keyword(s):  
Indirect Method ◽  
Theoretical Issue ◽  
Recent Reform ◽  
Numerus Clausus ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Reform Debate

AbstractThe doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.

Offences against the Person: Into the 21st Century

2012 ◽  
Vol 76 (6) ◽  
pp. 472-492 ◽  
Author(s):  
Michael Jefferson
Keyword(s):  
21St Century ◽  
Male Circumcision ◽  
The Law ◽  
Law Commission ◽  
Hiv Aids

The Law Commission will shortly begin discussions on reform of the law of non-fatal offences by issuing a scoping paper. This article starts with a review of recent improvements in the ways in which the Commission may get its Bills enacted. It then critiques the principal (to modern eyes) crimes of this kind found in the Offences against the Person Act 1861. Its focus lies on those offences and not the more policy-driven law, for example, on the transmission of HIV/AIDS, sado-masochism, male circumcision, and boxing (all of which are highly important). It concentrates on the Commission's previously expressed concerns that the statute's language is archaic and that the Act fails to provide a hierarchy (a ‘ladder’) of offences. It concludes with a redraft of the statute and a quote from Henry LJ in R v Lynsey that ‘Bad laws cost money and clog up the courts with better things to do’.

scholarly journals Case Comment – Cumberland v Accident Compensation Corporation

2014 ◽  
Vol 45 (3) ◽  
pp. 525
Author(s):  
Anthea Williams
Keyword(s):  
New Zealand ◽  
Medical Treatment ◽  
Case Law ◽  
Personal Injury ◽  
Compensation Scheme ◽  
Accident Compensation ◽  
Physical Effects ◽  
Wrongful Birth ◽  
Court Of Appeal ◽  
Lost Opportunity

In Cumberland v Accident Compensation Corporation, the Court of Appeal held that where a mother is denied the information that her foetus is disabled, and thus loses the opportunity to terminate the pregnancy, the "continuing pregnancy" can be a personal injury covered by the Accident Compensation scheme. This article examines the judgment and argues the Court of Appeal has extended New Zealand case law on "wrongful births" without explicitly acknowledging this. The author suggests that, by focussing purely on the physical effects on the mother and her lost opportunity to determine the medical treatment given to her, the Court has avoided the value laden approach that has plagued other wrongful birth cases.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

Nervous Shock, Tort and Accident Compensation: Tort Regained?

1999 ◽  
Vol 30 (1) ◽  
pp. 197
Author(s):  
Geoff McLay
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Complex Interaction ◽  
Physical Injury ◽  
Compensation Scheme ◽  
Accident Compensation ◽  
The Common ◽  
Nervous Shock ◽  
The Relationship ◽  
Court Of Appeal

This case note examines the recent Court of Appeal decision in Palmer v Danes Shotover Rafts  dealing with the relationship between the common law and the Accident Compensation regime. The author acknowledges the practical importance of the Court's holding in Danes Shotover Rafts that plaintiffs who have not suffered physical injury can sue for nervous shock.  The author contends that the case is, like the exemplary damages cases, yet another example of the complex interaction between common law and statutory compensation regimes.  The author argues that the case may signal a judicial switch from a welfare or communitarian approach to the interpretation of the Accident Compensation scheme to a rights based approach and that gives primacy to common law rights rather than to the integrity of the Accident Compensation scheme.  A wider view not based solely on the statutory provisions, or on the assumption that the common law or statutory compensation regimes "trump" one another, but one which views the interaction between the common law and statutory compensation schemes as dynamic, may lead to a greater understanding of the relationship between statutory tort reform and the common law.

scholarly journals Promoting Safety Through Law, National and International, and by Other Means

2018 ◽  
Vol 49 (2) ◽  
pp. 229
Author(s):  
Ken J Keith
Keyword(s):  
New Zealand ◽  
Memorial Lecture ◽  
Compensation Scheme ◽  
100Th Birthday ◽  
Law And Policy ◽  
Accident Compensation ◽  
The Law ◽  
The University

The Woodhouse family, friends of Sir Owen Woodhouse and the law faculties of the Victoria University of Wellington and the University of Auckland decided on the occasion of what would have been Sir Owen Woodhouse's 100th birthday that a fellowship and lectureship should be established in recognition of the great contributions he has made to law and policy in New Zealand and beyond. The fellows and lecturers are not to see themselves as limited to the law and are encouraged to address broader matters challenging people here and abroad. Sir Kenneth Keith gave the inaugural Sir Owen Woodhouse Memorial Lecture in Wellington on 29 August 2017 and in Auckland on 30 August 2017. The address considers in turn the dangers and perils at work, at sea and on the battlefield. It reflects on New Zealand's accident compensation scheme and suggests possible extensions to the scheme.

scholarly journals Pregnancy Following Failed Sterilisation Under the Accident Compensation Scheme

2009 ◽  
Vol 40 (4) ◽  
pp. 805
Author(s):  
Yasmin Moinfar
Keyword(s):  
New Zealand ◽  
Compensation Scheme ◽  
Accident Compensation ◽  
Alternative Approach ◽  
Court Of Appeal

This paper analyses the approach that is taken in New Zealand in determining coverage for pregnancies following failed sterilisations under the accident compensation scheme. The approach adopted in the recent decision of the Court of Appeal in ACC v D is criticised and an alternative approach for determining whether such claims ought to be within the accident compensation scheme is suggested.

scholarly journals Whither Nervous Shock? The Current State, Future Direction and Possible Reform of Compensation for Negligently Inflicted Psychiatric Injury after Ramstead

2001 ◽  
Vol 32 (2) ◽  
pp. 521
Author(s):  
Peter Richmond McRae
Keyword(s):  
Subsequent Development ◽  
Compensation Scheme ◽  
The United Kingdom ◽  
Current State ◽  
Accident Compensation ◽  
Regulatory Bodies ◽  
Nervous Shock ◽  
Future Direction ◽  
Vexed Question ◽  
Court Of Appeal

Whether compensation should be available for psychiatric injury, traditionally labelled "nervous shock", has been a vexed question whether considered by the courts or by regulatory bodies in terms of the Accident Compensation scheme. In this article, the author provides an analysis of the evolution of compensation for nervous shock in New Zealand, from its incorporation in the original Accident Compensation Act 1972, its release into tort by the 1992 Act and its subsequent development by the courts up until the Court of Appeal decision in Ramstead. The decision in Ramstead is then analysed, and its implications for the tort discussed in light of the United Kingdom and Australian jurisprudence. Ultimately, the author concludes that nervous shock is better dealt with under the statutory compensation scheme and canvasses the arguments made in support and against this proposition.

scholarly journals COMMENTARY: Return to Work The New Zealand Experience Under the Accident Compensation Scheme

1970 ◽  
Vol 21 (2) ◽  
Author(s):  
Ross Wilson
Keyword(s):  
New Zealand ◽  
Cultural History ◽  
Common Law ◽  
Comparative Law ◽  
Royal Commission ◽  
Compensation Scheme ◽  
Major Step ◽  
The Core ◽  
Accident Compensation ◽  
The Common

On the 1st of April 1974 New Zealand embarked on a bold expaiment. We abolished the tort action for personal injury and established a comprehensive, national, no-fault accident compensation scheme. The abolition of the common law right to sue was certainly regarded by jurists as a major step. The American Journal of Comparative Law described it in sombre tones as "an unparalleled event in our cultural history, the first casualty among the core legal iutitutions of the civilised world". It wasn't a step taken lightly and the Royal Commission recommendations on which the reform was based were subjected to public debate and Jeaislative scrutiny for more than five years. As A.J. Faulker M.P. commented in Parliament on 3 October 1972:

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