Date: Thu, 28 Feb 2008 08:33

From: Geoff McLay

Subject: Corr v IBC [2008] UKHL 13

This led me to ask colleagues what we do in New Zealand. The answer is that we would have covered this under the ACC injury. See the following provisions:

The story of how "self harm" is dealt with under ACC or other compensation schemes is a story of its own, and I will leave others to figure out whether this is more humane way of dealing with this.

Injury Prevention, Rehabilitation, and Compensation Act 2001 No 49 (as at 17 January 2008): 

119 Disentitlement for wilfully self-inflicted personal injuries and Suicide

(1) The Corporation must not provide any entitlement (except treatment) under Schedule 1 for -

(a) a personal injury that a claimant wilfully inflicts on himself or herself or, with intent to injure himself or herself, causes to be inflicted upon himself or herself; or

(b) the death of a claimant due to an injury inflicted in the circumstances described in paragraph (a); or

(c) the death of a claimant due to suicide.

(2) This section does not excuse the Corporation from liability to provide a claimant with entitlements if the personal injury or death was the result of mental injury.

-----Original Message-----
From: KA Oliphant
Sent: Wednesday, 27 February 2008 3:36 p.m.
Subject: OGD : Corr v IBC [2008] UKHL 13

The House of Lords has ruled that, where V suffers reasonably foreseeable depression as a result of an accident caused by D's negligence, and subsequently commits suicide as a result of the depression, his widow's claim for damages is not barred by doctrines of novus actus interveniens, remoteness of damage or volenti non fit iniuria. On the facts, V's actions were not sufficiently voluntary.

There are some interesting comments on remoteness, with new indications that a direct challenge to Page v Smith may be entertained in the not too distant future. And an interesting divergence of opinion on contributory negligence. Lord Scott would have reduced the damages by 20%. The other four Law Lords declined to make any deduction - but, in the cases of Lord Mance and Lord Neuburger, only because the issue hadn't been fully argued in the courts below: they considered that contributory negligence could in principle succeed in such a case. Lord Bingham and Lord Walker would not have made any deduction even if the defence had been properly raised in the courts below.

(Another interesting point: Lord Bingham states that he would assess V's contributory negligence at 0% (at [22]). This seems to be a conceptual error: Bingham thought V was not blameworthy at all, so it was a case that falls outside the legislative apportionment regime (no "fault"), not one where D and V's share of responsibility has to be assessed at all. In any case, it may be doubted whether a 0% "share" of responsibility can be distinguished from the 100% the Court of Appeal rejected as doctrinally impossible in Anderson v Newham [2003] ICR 212.

You can find the full judgment here.

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