The appellant was denied cover for lung cancer caused by passive smoking in the workplace under the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the 2001 Act"). The insurer denied cover because, although the 2001 Act provided cover for this type of claim, the previous Act specifically excluded it, and the 2001 Act's transitional provisions required the injury to have also been compensable under the previous Act.
In the lower Court, Ongley J upheld the insurer's decision to deny coverage (see: Simm v. Accident Compensation Commission [2005] NZACC 33 (1 February 2005)). This was an appeal from Ongley J's decision.
The High Court rejected the appeal, agreeing with Ongley J that the exclusion was clear on the face of the legislation.
Simm v. Accident Compensation Commission [2006] NZHC 1634 (20 December 2006)
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
Measures dealing with criminal and civil liability, including compensation.
(See FCTC Art. 19)
Substantive Issues
None
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Mr Miller said that “specific occasion” should be interpreted in the plural. He
referred to s 33 of the Interpretation Act 1999. However in the context of the
definition of “accident” in the legislation a different interpretation (that is, a singular
interpretation) is required. In the first definition of “accident” the legislation has
referred to “a specific event, or a series of events”. This second definition is
confined to a “specific occasion”. There is also the problem, as with the first
alternative under this part of the appeal, that to interpret the legislation in the way
Mr Miller contended is inconsistent with the legislature having made a decision to
exclude work-related passive smoking. My conclusion on this part of the appeal is similar to that in Winikerei v ACC HC WN CIV 1999-485-000008 27 July 2005 where the Court was concerned with foetal harm through alcohol consumption during pregnancy. For these reasons, if it is unfair to deny cover to claimants who first suffered lung cancer from passive smoking in the work place prior to 1 April 2002 and who continue to suffer lung cancer, that is a matter for Parliament to address and not the courts."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The appellant was denied cover for lung cancer caused by passive smoking in the workplace under the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the 2001 Act"). The insurer denied cover because, although the 2001 Act provided cover for this type of claim, the previous Act specifically excluded it, and the 2001 Act's transitional provisions required the injury to have also been compensable under the previous Act.
In the lower Court, Ongley J upheld the insurer's decision to deny coverage (see: Simm v. Accident Compensation Commission [2005] NZACC 33 (1 February 2005)). This was an appeal from Ongley J's decision.
The High Court rejected the appeal, agreeing with Ongley J that the exclusion was clear on the face of the legislation.