TOBACCO CONTROL LAWS

Simm v. Accident Compensation Commission

Mr Simm lodged a claim for compensation under the Injury Prevention, Rehabilitation and Compensation Act 2001 ("the 2001 Act") for lung cancer caused by passive smoking in the workplace, either as personal injury caused by accident or by work-related gradual process. His claim was rejected on the basis that personal injury caused by passive smoking was excluded from cover as a work-related personal injury under the former Accident Insurance Act 1998, and cover under the transitional provisions of the 2001 Act required the injury to have been compensable under the previous Act.

The parties agreed for the Court to decide as a preliminary matter of law whether cover could lie under the 2001 Act for lung cancer caused by passive smoking first treated in 1999.

In this decision, Ongley J found that the claim could not fall for cover under the 2001 Act, either as a personal injury caused by accident or as a work-related gradual injury - the matter had been subject to continuing statutory exclusions which were clear in their purpose.

This decision was unsuccessfully appealed: see Simm v. Accident Compensation Commission [2006] NZHC 1634 (20 December 2006).

Simm v. Accident Compensation Commission [2005] NZACC 33 (1 February 2005)

  • New Zealand
  • Feb 1, 2005
  • District Court at Wellington
View Case History Download Document

Parties

Plaintiff David Simm

Defendant Accident Compensation Corporation

Legislation Cited

Accident Insurance Act 1998 (NZ)

Injury Prevention, Rehabilitation and Compensation Act 2001 (NZ)

Related Documents

None

Type of Litigation

Personal Injury
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.

Tobacco Control Topics

Liability
Measures dealing with criminal and civil liability, including compensation. (See FCTC Art. 19)

Substantive Issues

None

Type of Tobacco Product

None

"I find that passive smoking cannot be brought under s25 as injury caused by an accident. The historic argument is persuasive, that similarly constructed definitions in the 1992 and 1998 Acts have not contemplated passive smoking exposure as a series of events amounting to an accident. The same form of definition of accident was adopted in the 2001 Act and it could not have been intended that the suggested change in the accepted understanding of the definition would have been contemplated. This is not a case in which the appeal should be allowed to go forward on the basis that scientific evidence might possibly establish that cancer caused by passive smoking could be caused by a limited series of events with the scope of s25. There is no suggestion that such evidence may be available and the hypothesis is no more than tentative."
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