Consumer Product Failure Causing Personal Injury Under the No-Fault Accident Compensation Scheme in New Zealand—a Let-off for Manufacturers?
- 88 Downloads
This article examines how the no-fault accident compensation system in New Zealand operates to relieve manufacturers from liability to consumers for product failures which cause personal injury or death. The state-run accident compensation scheme pays compensation to persons who suffer “personal injury by accident” and bars claims for compensation from the party at fault. The advantage for consumers is that they are entitled to compensation from the accident compensation scheme as of right and do not need to make claims against manufacturers of products which cause injury or death. The article outlines some limited circumstances when consumers may claim compensation from manufacturers and identifies other avenues for holding manufacturers responsible for injury or death caused by faulty products. The paper makes three recommendations to increase manufacturer responsibility: (1) allow the regulatory body which administers the Accident Compensation system to claim compensation, by way of subrogation, from manufacturers in limited circumstances; (2) require manufacturers to pay an additional “product liability” levy to the accident compensation scheme; and (3) amend the Health and Safety at Work Act 2015 to cover non-workplace accidents exposing manufacturers of unsafe products to Worksafe investigation and possible criminal liability. The article argues that imposing additional responsibility on manufacturers for product failures which cause personal injury or death is justified on the grounds of fairness. Arguments based on corrective fairness and distributive fairness can both be relevant in cases of personal injury caused to consumers by manufacturers.
KeywordsConsumer Product failure No-fault compensation Manufacturer liability
- Aristotle (1962). Nicomachean ethics (M. Ostwald, Trans.) Indianapolis: Bobbs Merrill. (Original work published 350 BC).Google Scholar
- Coleman, J. L. (1995). The practice of corrective justice. In D. G. Owen (Ed.), Philosophical Foundations of Tort Law (Vol. 53, pp. 56–57). Oxford: Clarendon Press Oxford.Google Scholar
- Cowan, T. A. (1965). Some policy bases of products liability. Stanford Law Review, 17(1077), 1087–1092.Google Scholar
- Dewees, D., & Trebilcock, M. (1992). The efficacy of the tort system and its alternatives: A review of empirical evidence. Osgoode Hall Law Journal, 30, 57–138.Google Scholar
- Fitzpatrick, B. (2017) Do class actions deter wrongdoing? Vanderbilt Law Research Paper No. 17–40, Available at: http://ssrn.com/abstract_id=3020282.
- Gardner, D. (2000). Automobile no-fault in Quebec as compared to Victoria. Tort Law Journal, 8, 89-106.Google Scholar
- Goldberg, J. C. P., & Zipursky, B. C. (2010). The easy case for products liability law: A response to professors Polinsky and Sharvel. Harvard Law Review, 123, 1919–1948.Google Scholar
- Harrison, R. (1993). Matters of life and death: The accident rehabilitation and compensation insurance act 1992 and common law claims for personal injury (p. 42). Auckland: Legal Research Foundation.Google Scholar
- Hurley, A. (1996). Prospects of recovery in negligence and under statute for Creutzfeldt-Jakob disease resulting from human pituitary gland derived hormone products. Tort Law Journal, 4, 60.Google Scholar
- Hylton, K. N. (2013). The law and economics of products liability. Notre Dame Law Review, 88, 2457–2514.Google Scholar
- Keating, G. C. (2000). Distributive and corrective justice in the tort law of accidents. Southern California Law Review, 74, 193–224.Google Scholar
- Luntz, H. (2010). Torts and insurance: The effect on deterrence. Proceedings of the Torts in Commercial Law Conference, Sydney, 17 December 2010. Available at: https://www.researchgate.net/publication/315044730_Torts_and_Insurance_The_Effect_on_Deterrence.
- Manning, J. (2002). Reflections on exemplary damages and personal injury liability in New Zealand. New Zealand Law Review, 2002, 143–184.Google Scholar
- Mill, J. S., & Sher, G. (1979). Utilitarianism. Indianapolis: Hackett Pub. Co.Google Scholar
- Polinsky, A. M., & Shavell, S. (2010). The uneasy case for product liability. Harvard Law Review, 123, 1437–1492.Google Scholar
- Rawls, J. A. (1999). A theory of justice (rev.ed). Cambridge: Harvard University Press.Google Scholar
- Report of the Royal Commission. (1967). Compensation for personal injury in New Zealand. Wellington: Government Printer (“The Woodhouse Report”).Google Scholar
- Schwartz, G. T. (1994). Reality in the economic analysis of tort law: does tort law really deter? University of California Los Angeles Law Review, 42, 377–444.Google Scholar
- Shortall, S., & Richards, M. (2014). Health and safety alert – reparation orders can include "top up” to ACC payments. Minter Ellison Rudd Watts website 20 November 2014. Available at: http://www.minterellison.co.nz/Reparation_orders_can_include_top-up_to_ACC_payments_11-20-2014/.
- Stewart, L. S. (2009). Strict liability for defective product design: The quest for a well-ordered regime. Brooklyn Law Review, 74, 1039–1059.Google Scholar
- The ACC. (2016/2017). ACC Levy Guidebook 2016/2017. Available at: https://www.acc.co.nz/home/search?Search=levy+guidebook&submit.x=0&submit.y=0.
- Tokeley, K. (1997). Tobacco litigation. New Zealand Law Journal, 346–348.Google Scholar
- Tokeley, K. (Ed.). (2014). Consumer Law in New Zealand (2nd Ed.). Wellington: LexisNexis.Google Scholar