Allen and Others v Depuy International Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Simler DBE |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] EWHC 926 (QB) |
| Docket Number | Case No: TLQ/13/1229 |
| Court | Queen's Bench Division |
| Date | 01 April 2015 |
[2015] EWHC 926 (QB)
Mrs Justice Simler DBE
Case No: TLQ/13/1229
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Hugh Preston QC, Professor Adrian Briggs&Mr Conor Dufficy (instructed by PLI Legal Services) for the Claimants
Mr Charles Dougherty QC & Mr Alexander Antelme QC (instructed by Kennedys Solicitors) for the Defendant
Hearing dates: 17, 18, 19, & 20 March 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
Mr Allen, Mr Monks and Mr Myson ("the Claimants") who are part of a much larger group of New Zealand and other overseas residents from a number of countries, claim damages for personal injury alleged to have resulted from being implanted with defective prosthetic hip implants manufactured by the Defendant and implanted in the course of operations that took place in New Zealand. The Defendant is a company registered in England and manufactured the prosthetic hip implants in England.
As the Defendant is domiciled in England, the Claimants are entitled as of right to bring their claims here, whether or not England is otherwise the appropriate forum. By a judgment in these proceedings reported at [2014] EWHC 753, Stewart J dealt with preliminary issues as to the applicable law in these proceedings and, if English law applies to any claim, whether the Consumer Protection Act 1987 applies. He concluded that pursuant to the Private International Law (Miscellaneous Provisions) Act 1995, the applicable law for the New Zealand Sample Claimants is that of New Zealand. Even if English law applied, he held that no Claimants would have the benefit of the provisions of the Consumer Protection Act 1987 as the supply and marketing of the product and the alleged injury, all occurred outside the EU and the Claimants had no connection with the EU.
Since the judgment of Stewart J the New Zealand Claimants amended their claims to plead New Zealand law and in particular, reliance on the provisions of the Consumer Guarantees Act 1993 ("CGA"). Under the CGA a consumer has a claim against a manufacturer if goods supplied are not of acceptable quality or fit for purpose. Where goods fail to comply with the acceptable quality guarantee there are rights of redress afforded by the CGA, including a remedy for loss and damage which was reasonably foreseeable (s.27 CGA).
Although the Defendant denies that the goods supplied are defective, it submits in any event that claims for damages for personal injury, whether under the CGA or otherwise, are precluded by the statutory bar in s.317(1) of the New Zealand Accident Compensation Act 2001 ("ACA 2001"). Section 317(1) provides that "no person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of personal injury covered by this Act …". The effect of the statutory bar, and its proper characterisation for these purposes is challenged by the Claimants.
Consequently by order of Master Cook dated 2 July 2014, the trial of a further preliminary issue was directed in relation to four of the New Zealand Sample Claimants, as follows:
"whether under the substantive law of New Zealand, as applicable pursuant to the Private International Law (Miscellaneous Provisions) Act 1995, their claims are precluded by section 317 of the ACA 2001".
Following exchange of expert reports, the Defendant conceded the preliminary issue so far as Mr Fletcher, the Third Claimant is concerned, and the Defence was re-re-amended to reflect this. His claim is now stayed with the other New Zealand claims.
The parties agree that the preliminary issue raises two essential questions:
(i) Is s.317 ACA 2001 a substantive or a procedural rule? If the rule is characterised as procedural only it will be disregarded by this court. By contrast, if it is a substantive rule, it must be applied by this court.
(ii) If the rule is substantive, does s.317 remove the right of these Claimants to compensatory damages for personal injury in this case as a matter of New Zealand law? In particular, does s.317 require relevant conduct in New Zealand as the Claimants contend before it has any application?
If the preliminary issue is determined in the Defendant's favour it will bring the New Zealand Claimants' claims to an end. If it is determined in the Claimants' favour then they (and others) will be able to proceed with their claims in the English courts, under the CGA, applying New Zealand law.
I have been greatly assisted in dealing with the preliminary issue by written and oral submissions on both sides: Charles Dougherty QC and Alexander Antelme QC for the Defendant; and Hugh Preston QC, Professor Adrian Briggs, and Conor Dufficy for the Claimants. I am grateful to them all.
The expert evidence
It is common ground that a New Zealand court called upon to decide the circumstances in which s.317(1) applies would approach this as an exercise in statutory interpretation. The meaning of the enactment in question would have to be ascertained from the text and in light of its purpose.
Since foreign law is a matter of fact normally proved by expert evidence, expert evidence as to New Zealand law has been called on both sides directed at predicting the likely decision of a New Zealand court required to address the preliminary issue in this case. In addition to assessing the weight of the expert evidence it is common ground that I am both entitled and indeed bound to bring to bear my own judgement in reaching conclusions as to New Zealand law.
I have received expert evidence in the form of expert reports, a statement as to what is agreed and what is disputed and oral evidence that was subject to cross-examination from two eminently qualified experts in New Zealand law. I do not set out their qualifications or their evidence in any detail. Campbell Alan McLachlan QC, Professor of Law at Victoria University of Wellington, whose specialist area of expertise is private international law, and who was called to the Inner Bar in New Zealand in 2007 and has practised extensively both as a barrister and as an arbitrator appeared on behalf of the Defendant. In summary in his opinion where a person has cover under the ACA 2001 in accordance with its territorial scope, in respect of a personal injury, he or she has no actionable claim for or right to compensatory damages under New Zealand law. In his opinion, the bar in s.317(1) ACA 2001 has substantive effect and removes the right to pursue an action for compensatory damages for personal injury, whether in negligence, under the CGA or under any other cause of action as the quid pro quo for the comprehensive cover provided under the statutory scheme of the ACA 2001. Further in his view the ACA 2001 itself determines the scope of cover and therefore the scope of the operation of the statutory bar.
By contrast, David Goddard QC, admitted in 1989, appointed as Queen's Counsel in 2003 and recognised as one of New Zealand's leading barristers with particular expertise in private international law and with long standing experience of acting in cases concerning tort claims and the author of a number of publications and responsible for a Ministerial Inquiry into Accident Compensation Funding and Accreditation of Physiotherapy Services in 2007, appeared on behalf of the Claimants. In summary in his opinion as a matter of New Zealand law, s.317 does not extinguish any cause of action under New Zealand law or otherwise in respect of accidental personal injury, and does not prevent proceedings being brought in New Zealand or abroad claiming exemplary or punitive damages in respect of accidental personal injury covered by the ACA 2001. Rather it prevents claims for compensatory damages in respect of conduct in New Zealand by a defendant who may have contributed levies to the scheme and who can "reasonably expect" not to have to insure against such claims or face such proceedings. In his expert opinion, the answer to the question at issue is that however the provision is characterised (whether procedural or substantive) as a matter of statutory interpretation it does not apply to claims in an overseas court relating to conduct outside New Zealand. In any event, since he concludes that the bar operates to prevent proceedings being brought for compensatory damages for personal injury and there is no need and no good reason to treat it as having a more far-reaching effect, he considers it to be a procedural rule and not a substantive one: it bars proceedings for the recovery of damages leaving causes of action intact.
The New Zealand Accident Compensation Scheme
There is broad agreement between the experts about the origins, character and operation of the New Zealand Accident Compensation Scheme (referred to as "the Scheme") including the scope of cover and the claims process and administration of the Scheme.
The Scheme derives from a Royal Commission of Inquiry Report in 1967, known as the Woodhouse Report which recommended the creation of a comprehensive, universal and compulsory no fault compensation scheme and
"extinguishing present common law rights in respect personal injuries …" (paragraph 306(b)).
The Woodhouse Report identified common law actions for damages as hindering the rehabilitation of injured persons, and the fault principle as an illogical justification for the common law remedy in negligence, erratic and capricious in its operation (paragraph 485(1) and (2)). At paragraph 489...
To continue reading
Request your trial
-
McGougan v Depuy International Ltd
...Act 2001, s 32; refer [22(3)]. 5 Allen v DePuy International Ltd [2014] EWHC 753 (QB). 6 Allen v DePuy International Ltd [2015] EWHC 926 (QB) at 7 Royal Commission of Inquiry Compensation for Personal Injury New Zealand (Government Printer, Wellington, 1967). 8 Accident Compensation Act 1......
-
McGougan and Dingle v Depuy International Ltd
...3 Allen v DePuy International Ltd [2014] EWHC 753, [2015] 2 WLR 442 (QB) [ Allen (No 1)]. 4 Allen v DePuy International Ltd [2015] EWHC 926 (QB) [ Allen (No 5 Estoppel decision, above n 2, at [99]. 6 At [94]. 7 Statutory bar decision, above n 1, at [1]. 8 Accident Compensation Act 2001, s......
-
Mcgougan v Depuy International Limited
...Compensation Act 2001, s 32; refer [22(3)]. Allen v DePuy International Ltd [2014] EWHC 753 (QB). Allen v DePuy International Ltd [2015] EWHC 926 (QB) at Preliminary questions [18] On 17 March 2016, this Court directed that, by consent, two preliminary issues be determined in this proceedin......
-
Mcgougan and Dingle v Depuy International Limited
...statutory bar question: does s 317 of the ACC Act bar the appellants’ claims for compensation? 4 5 6 Allen v DePuy International Ltd [2015] EWHC 926 (QB) [Allen (No Estoppel decision, above n 2, at [99]. At [94]. (b) The issue estoppel question: are the appellants estopped (or otherwise pre......