2008 N.Z. L. Rev. 37 (2008)
Common Law Actions on the Margin

handle is hein.journals/newzlndlr2008 and id is 49 raw text is: Common Law Actions on the Margin
ROSEMARY TOBiN*
The boundary areas between illness and disease will always be
difficult to draw. This paper considers two areas that have led to
difficulty in the context of the accident compensation scheme. cases
involving mental injury alone and cases of unplanned pregnancy.
The author argues that in a comprehensive accident compensation
scheme the definition of personal injury should take cognizance of
developments in medical knowledge, and include mental injury. An
unplanned pregnancy as a personal injury to the mother creates
special difficulties, and indeed does some violence to the definitions
in the legislation. The author suggests that a legislative amendment
to clarify this is desirable.
[W]isdom, logic, and justice all require that every citizen who is injured
must be included, and equal losses must be given equal treatment. There
must be comprehensive entitlement.
Introduction
The common law action provides a complete indemnity to only a small
number of persons. It is costly, time-consuming, and an impediment to
rehabilitation.2 It was for reasons such as these that the Woodhouse Report
recommended replacement of the common law action with a comprehensive
accident compensation scheme . Yet, notwithstanding the comprehensive,
no-fault nature of the ACC scheme, there have been attempts to pursue
common law claims outside it. With the major social and legal changes that
the legislation wrought, it is not surprising that initially there were challenges
*Associate Professor, Faculty of Law, The University of Auckland.
1 Report of the Royal Commission of Inquiry, Compensation for Personal Injury in New
Zealand (13 December 1967) (the Woodhouse Report), para 4.
2 For illustrations of this, see Luntz, A View From Abroad [2008] NZ Law Review
97.

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