2008 N.Z. L. Rev. 97 (2008)
A View from Abroad

handle is hein.journals/newzlndlr2008 and id is 109 raw text is: A View from Abroad
HAROLD LUNTZ*
The Woodhouse Commission examined the common criticisms of the
common law action for negligence in relation to personal injury. The
criticisms included the risk of litigation (the uncertainty ofoutcome);
the reduction of damages if there was any contributory negligence;
the long delays before the receipt of compensation, if any; the high
costs of determining who was and who was not entitled, the need to
find a solvent defendant, the adverse effects on rehabilitation; and
the inappropriateness of lump sum awards of damages to provide
for long-term incapacity. The Woodhouse Commission concluded
that the time [had] clearly come for the common law action to
yield to a more coherent and consistent remedy in the whole area
of personal injury , and it recommended that the Court action
based on fault should now be abolished in respect of all cases of
personal injury, no matter how occurring . This article examines the
continued application of the common law of negligence in relation
to personal injury in Australia, with particular reference to decisions
of the High Court of Australia. It demonstrates that the criticisms
made by the Woodhouse Commission remain valid 40years later and
contrasts the decisions of the High Court with how similar injuries
would be dealt with in New Zealand. For pragmatic reasons, the
Woodhouse Commission confined its recommendations to accidental
injuries, and hoped that other forms of incapacity could be accommo-
dated later The later 'Australian Woodhouse Report recommended
the extension of the compensation scheme to incapacity caused by
congenital conditions and sickness, but that scheme was never
implemented. The failure to extend the New Zealand compensation
scheme in this way means that some of the High Court decisions on
*Professor Emeritus, Law School, The University of Melbourne. My thanks to Rosemary
Tobin, Joanna Manning, and Donal Nolan for their comments on my first draft.

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