Traumatised Bodies: Towards Corporeality in New Zealand’s Privacy Tort Law Involving Accident Survivors

Abstract

This article combines several different literatures (legal, medical and theoretical) in order to explore privacy law cases which involve accident survivors. I adopt an inductive methodology which emphasises the accident survivors' experiences. Their accounts demonstrate their position of special vulnerability. However, accident survivors currently receive inadequate protection because the New Zealand privacy tort does not recognise their special vulnerable status. The accident survivors' privacy claim in Andrews v TVNZ, for example, failed because the Court held that the publication was not highly offensive. The legal status quo is problematic because accident survivors whose privacy has been breached expect the law to provide protection at a time when they are vulnerable and unable to protect themselves. The privacy intrusions experienced by accident survivors cause adverse health outcomes. Alternative perspectives from theoretical and empirical medicine reveal the extent of the problem and help to suggest necessary reforms. This literature justifies recognising accident survivors as a special class of plaintiffs. New Zealand's privacy tort could be reformed by presuming that they have a reasonable expectation of privacy and that images of accidents are distressing and humiliating.