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Connell, Simon; Howells, Geraint --- "Preface. Articles following the conference: The "Private" law's response to accident, illness and disability" [2019] OtaLawRw 5; (2019) 16 Otago LR 73

Last Updated: 16 November 2022

Conference Articles Preface

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Preface

Articles Following the Conference: The “Private” Law’s Response to Accident, Illness and Disability

Simon Connell* and Geraint Howells**

The following articles in this issue of the Otago Law Review are based on papers presented at the conference The “private” law’s response to accident, illness and disability, held in Hong Kong on 18 and 19 February 2019. The conference was the result of a collaboration between the City University of Hong Kong Law School, on whose campus it was held, and the University of Otago. The financial support of both institutions is gratefully acknowledged. In order of presentation, the speakers at the conference were:

• Dr Simon Connell (Faculty of Law, University of Otago, New Zealand)
• Mr Warren Forster (Barrister and Independent Researcher, New Zealand)
• Ms Dawn Duncan (University of Auckland Business School, New Zealand)
• Professor Daniel Gardner (Faculté de droit, Université Laval, Québec, Canada)
• Professor Marie-Ève Arbour (Faculté de droit, Université Laval, Québec, Canada)
• Dr Ding Chunyan (School of Law, City University of Hong Kong)
• Professor Geraint Howells (Dean & Chair Professor of Commercial Law, School of Law, City University of Hong Kong)
• Professor Thomas Wilhelmsson (Chancellor (Emeritus), Professor, Faculty of Law, University of Helsinki, Finland)
• Professor Vincent Rivollier (Faculté de Droit, Savoie Mont Blanc University, France)
• Prof. Dr. Peter Rott (University of Kassel, Germany)
• Prof. Dr. Piotr Machnikowski (Faculty of Law, Administration and Economics, University of Wrocław, Poland)

The conference wanted to explore the rationales for developing no-fault compensation schemes. New Zealand has undertaken a major social and legal experiment in largely replacing tort liability for accidents with a state run compensation scheme. However, as the assembled papers reflects there are also pockets of no-fault liability in many legal systems. Reflecting on the collection of articles herein gives us an opportunity to comment on some of the common themes that were raised at the

* Senior Lecturer, University of Otago.

** Professor of Commercial Law, University of Manchester. Previously Dean, School of Law, City University of Hong Kong (2014-2019).

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conference. One of the evident overarching themes of discussion was the justifications for marking out certain areas for special treatment, which all the articles in this volume address.

With respect to the special treatment in terms of compensation for certain sort of injuries because they were suffered in a particular way, several articles focus on how a particular legal system has responded to a specific injury scenario. Ding Chunyan examines the operation of two schemes that address medical injuries in China concerning clinical injuries and vaccination adverse events. As she explains, unlike some other “no-fault” regimes that do not make compensation conditional on a determination of fault, these two schemes require that the injury victim prove the absence of fault. Vincent Rivollier considers the position of compensation for “medical accident” under French law, where civil liability based on fault (or strict liability) is the main basis for compensation, but a no-fault basis can step in where civil liability fails. Peter Rott writes of the near-impossibility of recovering damages under the German Arzneimittelgesetz (Pharmaceuticals Act), a defective product liability regime, in contrast with the Infektionsschutzgesetz (Act on Protection against Infections), a no-fault compensation system which belongs to the sphere of social security law and has developed independently from product liability law.

The remaining articles explore the rationales for different treatment of different categories of victims from a broader perspective. Geraint Howells discusses different rationales for special treatment of particular areas. He identifies efficiency-based, victim-centred, and enhancement- centred arguments, which he considers in the context of a number of different areas in the United Kingdom context for which a special response exists or has been mooted (criminal injuries, armed forces, medical injuries, industrial injuries, and road accidents). Simon Connell explores the special cases where victims of injuries can get additional payments from a wrongdoer despite already being the recipients of compensation under New Zealand’s accident compensation scheme.

Piotr Machnikowski provides an overview of compensation for accidents in Poland, which he describes as a “patchwork of public and private solutions, including both those originally introduced in the communist period, and those that emerged in the market economy era. He concludes that it seems impossible to replace that position with a unified no-fault scheme, in part because the different regimes, with their different responses to different injuries, are embedded in not only legal but also social tradition. Thomas Wilhelmsson explores the idea of a “learning law” that can respond to societal developments that introduce new risks of injury, such as new modes of transportation or sources of power. He concludes that legislative solutions are a natural solution for providing compensation for broad classes of injury that emerge in the modern era, with case law functioning as a learning mechanism capable of filling in gaps.

We write this introduction as the world faces a grave crisis from the

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Covid-19 virus. This is already producing novel responses to questions such as sick pay, as it is recognised compensation serves pubic purposes, by encouraging self-isolation, as well as meeting private needs. A theme discussed during the conference was not only the differential compensation of various kinds of accident injuries, but also the broader question of equity between those suffering from an accident and those in similar positions due to illness or disability. In the debate about making resources available for those in unfortunate circumstances, it is easy for emotion to sway decision-making or for powerful interest groups to dominate the discourse.

The ongoing pandemic highlights both how nation states are interdependent and how individuals within states rely on one another. It also provides an example of how technological and social progress (air travel and liberalisation of travel between states) that benefits the many, can have very serious consequences. This brings to mind the forceful statement by the Royal Commission that recommended the introduction of a no-fault scheme for injury in New Zealand that:¹

The toll of personal injury is one of the disastrous incidents of social progress, and the statistically inevitable victims are entitled to receive a co-ordinated response from the nation as a whole.

A compassionate (welfare minded) state will ensure that its weakest members are protected when they suffer an accident, but also when affected by ill-health or disability. This broader debate may come to the fore and be particularly important as resources become strained by the global impact of current events.

Finally, we wish to express gratitude for the collaboration between the two Universities that made the conference possible, including their financial support that is gratefully acknowledged and appreciated, and for the attendees for participating.

Simon Connell and Geraint Howells

Postscript:

Since these papers were written there has been a valuable report published in the United Kingdom, Baroness Cumberlege Report – First do no harm, which hopefully will encourage debate about the establishment of no-fault redress schemes.

1. Owen Woodhouse Compensation for Personal Injury in New Zealand (Royal Commission to Inquire into and Report upon Workers’ Compensation, 1967) at [1].

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