Foster-Bell PaulPAUL FOSTER-BELL (National): E Te Mana Whakawā Tuarua tēnā koe. Tēnā koutou katoa e ngā mema o Te Whare Pāremata o Aotearoa. In taking a call in this debate on the Private International Law (Choice of Law in Tort) Bill I have great pleasure rising to support this bill that was put forward by my respected colleague Sarah Dowie the member for Invercargill.I am not a legal expert or even a lawyer but luckily we have talent in this House in this area and I would obviously acknowledge that of the member who just resumed his seat David Parker. But I did want to just comment on one statement that the Hon David Parker made in his speech around parties that may choose to contract particularly in international business dealings and which jurisdiction and which law would apply in their business dealings. As I say I am not a lawyer but my understanding of what a tort is is that it is a wrongful act other than a breach of contract. I do wonder as we go through the process and as we discuss it in the Committee stage if the member may be able to perhaps if I am wrong correct my misunderstanding of what we are dealing with here.I am genuinely interested in this point because obviously I have had my Arbitration Amendment Bill drawn which I think has some relation to this piece of legislation. Actually I also have to say that the Private International Law (Choice of Law in Tort) Bill was briefly in the ballot under my name. I think it has been in the process for some time. It was originally introduced I think under our friend and former colleague Chris Auchinvole's name and then obviously under the Hon David Bennett before he joined the executive. But Sarah Dowie has done incredibly good work both as chair of the Justice and Electoral Committee and sponsor of the bill in ensuring that the different views are heard on it and that members gain a greater understanding of what is a somewhat technical area of the law.I certainly bow down to the legal brilliance of colleagues such as the Honourable Judith Collins who was a noted member of the legal profession and I believe president of the Auckland District Law Society for a term. But with my rudimentary knowledge of the law I was very interested to observe as we went through the hearings process that what we were considering here in codifying in statute was a significant change in how private international law jurisdictional issues would be addressed. It represented a departure from something like 800 years of development of the common law. Being a traditionalist I am very hesitant to see any departure from something that has so carefully and in such a considered way developed over 800 years. But the concept that we are moving to—from double actionability which is the ancient concept to this bill which provides for lex loci delicti commissi which is that the law of the place in which the harm or wrong was committed should apply—is itself not a new concept.I believe that lex loci delicti came about in the United Kingdom as a legal concept in the 19th century and as has been discussed by other members so far in this debate jurisdictions such as the United Kingdom and Australia already apply the principle of lex loci delicti instead of the previous double actionability in order to provide greater clarity to particularly those operating in the international business sphere; although not restricted solely to that. I believe my colleague Jono Naylor the list member of Parliament from Palmerston North had a very interesting case that was not strictly a modern commercial dispute.But actually the abolition of the role of double actionability and the establishment of a general rule—that the applicable law is the law of the country where the events constituting the tort occurred—is in my view a useful development; although as has been mentioned there are areas where we do need to explore the detail to ensure that we as a House are doing the right thing in effectively rewriting 800 years of common law development. So it is more obvious in a case of property issues for instance. If your property is damaged it is pretty straightforward to understand what the property is what the damage was that occurred where it occurred and then apply the relevant local rules and legislation to that case.As has been canvassed in the debate areas such as personal injury are somewhat more difficult to understand and to provide I think comprehensive legal provisions for that will provide great certainty in all such cases of personal injury. So if we look at the Accident Compensation Act 2001 there are a couple of components to what might constitute an accident. It was very interesting that the Hon David Parker referred to certain forms of infection as constituting an accident or an accidental injury. Of course most diseases most medical conditions that are not the result of the application of external force causing harm or injury—such as a broken leg or even actually a millipede bite believe it or not constitutes an accident in terms of the Accident Compensation Act 2001. When someone may have for instance been infected due to medical malpractice due to unclean—Hon David Parker: Ginger beer—Donoghue and Stevenson.PAUL FOSTER-BELL: Ah yes! Donoghue and Stevenson—of course being an experienced lawyer the Hon David Parker would know that case. I think I studied that in first-year law at Otago University with Professor Mark Henaghan—I think in the introduction. Yes the snail in the ginger beer. So personal injury can be caused by something other than merely a physical accident like for instance some negligence on the part of a tour company that may lead to a severe sunburn and then a skin infection that could result from that severe sunburn. It could of course be something far more sinister such as someone knowing that they have a contagious and serious disease and not taking proper precautions—prophylactic precautions—to prevent that being passed on to another person and in some jurisdictions that would—Chris Bishop: What sort of measures?PAUL FOSTER-BELL: Prophylactic measures Mr Bishop: protections—being safe. So in some jurisdictions that would constitute more than just an accident resulting in injury but an actual assault on another person. So I actually think it is right and proper that the remedies that would be available to the person if they did not take the proper—if the person who committed the tort against them did not take the proper prophylactic protections the remedies that are available in that jurisdiction should be available to the person who has suffered the tortious damage. As the member across the aisle has commented mental injury does need to be considered.So I think it is absolutely appropriate that when we consider this bill we have made a recommendation of amending the current statutory bar on personal injury claims in section 317 of the Accident Compensation Act 2001. We think it is desirable to amend clause 7 to state specifically how the bill would treat personal injury. Our proposed insertion of clause 7(2)(aa) would make it clear that the applicable law in these cases would be the law of the country where the individual was when they were injured. We also make a couple of consequential suggestions of amendments to clause 7(3) which provides a definition of personal injury and expands that to include the mental injuries of the sorts that have been discussed—diseases and infections.So there is another interesting question which we did discuss in the select committee and it was actually quite an electrifying discussion I have to say. Some people might find this a rather dry area of the law but the distinction between substance and procedure was raised. So in clause 11(2)(b) which specified that the questions of procedure are to be determined according to New Zealand law we thought it was desirable that in these cases the distinction between substance and procedure should be allowed to evolve over time. We live in an electronic age when one may be able to in due course conduct one's litigation electronically for instance and so we recommended inserting clause 11(3) to clarify that the courts will be able to further develop the distinction between substance and procedure through case law over time. This is a very good bill and I commend it to the House.