Parker David; Tisch LindsayHon DAVID PARKER (Labour): As this issue has proceeded through Parliament I have improved my knowledge of the law. I must admit I did not properly understand this when this bill was at first reading and I still do not pretend to be an expert in the finer detail of the incidence of tort law when there is a crossover of jurisdiction.As the commentary says when we talk about torts we are talking about a wrongful act that is not a breach of contract that results in civil liability. So we are not concerned with contract law. We are not concerned with the criminal code. We are concerned with civil liability arising from non-breaches of contracts that are wrongful acts which are torts.When this matter comes to the Committee stage I will be asking the Minister to give us an assurance that one of the recommendations for changes in the bill that has been made by the select committee is done properly. That relates to the issue of personal injury. In New Zealand we have a very different system for personal injury from what applies around the world or in most other parts of the world. In most other parts of the world if you suffer a personal injury you have a right to sue for your losses against the person who caused your injury if they were acting negligently. So you have a right in tort to recover your losses for personal injury overseas.In New Zealand the right to compensation for personal injury is abrogated by the Accident Compensation Act. In return for universal access to accident compensation including earnings-related compensation treatment and sometimes lump-sum payments New Zealanders give up their right to sue. The ACC system of course is not a fault-based system so you do not have to prove fault. Your entitlement arises from your need according to your injury not as a consequence of someone else having a liability to compensate you for a wrong. It is true that in respect of workplace injuries overseas there are quite a few non-fault personal injury compensation schemes in operation but it is also true that outside of the workplace in most jurisdictions we still have tort-based liability for personal injury that relies upon proving negligence on the part of the party that caused the injury.Where this becomes important is if someone is bringing a claim in New Zealand in respect of a tort. This legislation as is clear from the commentary can apply to torts. It says: The bill as introduced does not specify that the bill would also apply to torts committed in New Zealand. To clarify this we recommend inserting clause 5(4) to state that the bill would apply to events occurring in New Zealand as it applies to events occurring in any other country." Then they go on to say that if we are going to do that we have got to make it clear that we are not doing anything in this bill to override New Zealand's provisions in respect of accident compensation or in respect of personal injury that is covered by the Accident Compensation Act 2001.The select committee has proposed inserting a clause into this agreement that makes it clear that the applicable law that will be considered in a tortious claim where this is being tried through private international law and it applies to a personal injury "… the applicable law would be the law of the country where the individual was when they were injured." So that is intended to cover the situation and make sure that this bill does not affect the operation of New Zealand's Accident Compensation Act which of course not only provides compensation on a no-fault basis but it also goes further and provides that no one can bring a tortious action for personal injury in New Zealand because it is covered by the no-fault accident compensation scheme.There is a definition included in this as reported back of personal injury and I think we need to be very very careful that we are capturing the same definition of personal injury as is covered by the Accident Compensation Act in New Zealand. If it is not identical then we are going to create legal uncertainty which is undesirable and that is something that we should be at pains to get absolutely right. It is actually quite a complex area. In New Zealand what amounts to a personal injury is not just a physical injury. A personal injury can be mental physical or both mental and physical and it can also extend to death. It can at times include infection. You can be accidentally infected in a way that meets the definition of personal injury in New Zealand and your only right of compensation would be under the accident compensation legislation if that fell within the definition of personal injury in New Zealand.So we need to make sure that we have got that correct. I know that this is a member's bill and so we do not have the same level of departmental support as we do for some other legislation. I think this is actually a very important detail of this legislation and I would expect that the member who is in charge of this bill Sarah Dowie when this issue comes to the Committee stage should be in a position to answer detailed questions in respect of this recommendation from the Justice and Electoral Committee so that we can be sure that this change which is I think a wise change brings New Zealand into alignment with overseas countries like the United Kingdom and Australia and I think someone also said Canada did they?Hon Member: Yep.Hon DAVID PARKER: And Canada. That is a good thing. I do not mind the fact that we are taking a codified statutory route rather than a common law route. But given that we are the details of the statutory route that we are taking have to be perfect because we are not leaving as much jurisdiction to the common law courts in order to sort out these details. If we are codifying the codification has to be perfect otherwise we will be creating problems.Conversely if you leave it to the courts and you have got the slow development of a common law approach to these issues then these issues are only dealt with as they arise. So the court cases have the ability to evolve on an iterative basis and only issues that are central to the case before the courts are determinative for the future. Unless they had a case that dealt with personal injury they would not be determining where the boundary lies in a personal injury as defined in the likes of this legislation. The fact that we are codifying it and we are putting a statutory definition in there will bind the courts and it will mean that the courts do not have room to move if there is an argument that has not been thought of.I had not thought through that issue of personal injury that obviously was thought of by either the officials or the submitters or the select committee itself. They are wise to have thought of it. But we must take great care given that we are codifying this issue in New Zealand law therefore taking away the jurisdiction of the court in an iterative way to allow the law to evolve including that if the facts ever arose relating to personal injury—we must take special care that we do not get that definition wrong.The bill as introduced does not mention whether parties can enter into agreements choosing the law to apply to tort claims. It is common for parties to international commercial contracts to choose applicable law. You can often read contracts that say that the laws of Hong Kong or the United Kingdom or New Zealand will apply and that can be said in a contract even if the parties to the contract are not from for example the United Kingdom. Indeed it is very common for shipping contracts to include a provision that says that the United Kingdom laws in respect of maritime law will apply to a dispute rather than there being a later battle as to what is the proper—The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. His time has expired."