Allen & Ors v Depuy International Ltd

A foreign statutory bar is substantive where, viewed in context and according to its purpose, it removes the underlying liability or head of loss rather than merely regulating enforcement. Section 317 of the Accident Compensation Act 2001 removes the right to recover compensatory damages for covered personal injury, while preserving a distinct claim for exemplary damages. The bar operates automatically with statutory cover and cannot be avoided by declining to claim compensation. Its reference to proceedings in New Zealand does not prevent a foreign court applying it. The bar is not confined to injury caused by conduct in New Zealand: the statutory scheme focuses on the location of the injury and the existence of cover, not the defendant’s conduct or expectations.

The claimants, residents of New Zealand and other countries, alleged personal injury from defective prosthetic hip implants manufactured in England and implanted in New Zealand. Stewart J had determined that New Zealand law applied to the New Zealand claims and that the Consumer Protection Act 1987 did not apply.

The issue was whether, under New Zealand law, section 317 of the Accident Compensation Act 2001 precluded claims for compensatory damages. The parties disputed whether the provision was substantive or procedural and whether it required the relevant conduct to have occurred in New Zealand.

1. The preliminary issue was determined for the defendant. The claims of the three New Zealand sample claimants were precluded by section 317(1) of the Accident Compensation Act 2001.
2. The substance/procedure classification was governed by English private international law, but required consideration of the provision’s effect under New Zealand law, its purpose and its consequences. The distinction followed in Harding v Wealands is between rules determining liability or actionable damage, which are substantive, and rules concerning remedies, assessment or quantification, which are procedural.
3. Section 317(1), read with the comprehensive no-fault scheme, removes or renders unavailable the right to recover all compensatory heads of loss for covered personal injury. It therefore affects liability and actionable damage, rather than merely the enforcement of an existing right. The bar operates automatically with cover, cannot be waived or contracted out of, and applies whether or not a claim is lodged.
4. Couch v Attorney General (No 2) established that exemplary damages remain available notwithstanding the bar on compensatory damages. This was treated as a stand-alone cause of action and did not preserve an underlying claim for compensatory personal-injury damages.
5. The reference in section 317(1) to proceedings in a New Zealand court did not exclude application by a foreign court. The provision did not expressly or by clear implication impose such a restriction. Nor was an additional requirement of conduct in New Zealand justified. The statutory scheme defined cover by reference principally to the injured person and the location of injury, and section 317(5) itself contemplated injury suffered abroad.

First-instance determination of a preliminary issue. The judgment refers to an earlier preliminary-issues decision by Stewart J, reported at [2014] EWHC 753, which determined that New Zealand law applied to the New Zealand claims.