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Ken Mackinnon Head Of Law, University Of Derby University of Waikato School of Law,

#1 User is offline   doppelganger 

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Posted 06 March 2005 - 10:24 PM


to the

Parliamentary Health Select Committee

on the

Injury Prevention, Rehabilitation, and Compensation
Amendment Bill (No 3)


My name is Ken Mackinnon. I am currently Head of Law at the University in Derby in the UK. Prior to that I lectured at the University of Waikato School of Law, and taught ACC law between 1993 and 2003. I spent a year (2002-03) as a Reviewer of ACC cases, issuing approximately 175 decisions. I have therefore built up a familiarity with both legal and practical aspects of the ACC scheme.

I would have wished to appear before the Committee, but as I cannot be in New Zealand until the second half of November, this may not be possible. I would be grateful if I could be contacted by email at [email protected] to let me know when the Committee is hearing oral submissions.

I support the overall aim of the Bill in removing the anomalous fault-based element in medical misadventure. Various other clauses introduce welcome changes and I make no comment on them. However there are a number of clauses that J wish to comment on in detail, and I wish to make some further comments in respect of some matters not altered in the Bill.

Physical Injury

Clause 6

This appears to be the best point to raise a general concern about the lack of definition of "physical injury". I believe that term should be further defined in Section 26 of the principal Act. It has been left to the courts to define "injury". The courts have not always been consistent in deciding whether "physical injury" includes, for example: occupational overuse syndrome, fibromyalgia, miscarriages, unwanted pregnancies, addictions to prescribed medicines, or an unnecessary surgical procedure.

Mental Injury

Clause 8

It continues to be of concern that victims of sexual offences are dealt with so differently from, say, a mother who witnesses her child being viciously attacked or killed and who is permanently traumatised by that event. Either all clinically significant mental injuries caused by accidents should be covered or none should.

Personal Injury Caused by Treatment

Clause 13

The intention of this clause is welcome. However, the proposed new section 32 contains some difficulties which need to be addressed.
The combination of new section 32(1)(b) and new section 32(2)(a) seems to be based on what I think is a false assumption, namely that the two causes (treatment and an underlying health condition) are mutually exclusive and can always be separated. However it is quite possible for an underlying health condition (eg cancer) to be a cause of injury and for treatment (esp with the Bill's wide definition which includes failure to diagnose) to be another cause: see, eg, Brownlie v Good Health Wanganui (1996)1 BACR 344 (HC). In order to resolve the potential conflict between the two proposed subsections, I believe it is necessary to insert into 32(2)(a) after the words "is caused" the phrase "wholly or substantially" (or the word "exclusively", depending on where Parliament wishes to draw the line). A parallel is found in section 26(2). I also recommend that the phrase "or attributable to" be deleted as it is not clear what it adds to what is a test of causation.

Proposed section 32(2)(b) also needs reworking. As it currently stands, the word "anticipated" relates only to "part" and not to "consequence". This is because of the commas surrounding "or consequence". I imagine the drafter intended that the consequence should be an anticipated one and if so, the commas must be removed.

There is a similar problem in paragraph (b)(vi). At the time of anticipating, how could the actual consequences of the treatment be known? Section 32(2)(b)(vi) must, if it is to make sense, refer to the usual or normal consequences of such treatment in general. I recommend that an adjective such as "usual" be inserted before "consequences

However there is a more fundamental flaw in section 32(2)(b) as currently drafted. It is unclear whether the test is objective or subjective.
  • Is the test whether the health professional actually anticipated such an injury (or the specific injury)?
  • Is it whether the patient actually anticipated it? [Both of these are subjective.]
  • Or is it whether the health professional should have anticipated it?
  • Or that the patient should have had sufficient information such that a (reasonable?) patient in that situation would have so anticipated? [These latter two are objective tests].
I take it from the inclusion of section 32(2)(b)(vii) - which I assume means "the state of clinical knowledge generally at that time" - that it is an objective test that is intended, but, if so, the section needs to be more explicit.

Any apparent tension between adopting an objective test here and the current view of consent (whereby New Zealand law now follows the Australian case of Rogers v Whittaker (1992)109 ALR 625 in requiring that consent needs to be looked at from the patient's perspective) can be resolved by separating the issue of whether there is a prima facie injury (section 32) from the causes (section 33).

There remains, I think, an inherent ambiguity in the word "anticipated" - which is effectively the re-introduction of the tortious ideas of foreseeability and remoteness into this area of ACC. Is the injury anticipated as being likely or unlikely to occur? If the effect of this paragraph is to exclude from ACC cover injuries which a cautious surgeon might anticipate as possible but unlikely (perhaps as unlikely as happening once in every hundred cases), then this paragraph has the effect of completely reversing the current cover for medical mishap. If the intention of the Bill is to exclude from cover only those consequences of treatment which are not uncommon (eg scarring, or recognised and documented side-effects), then a more precise term than "anticipated" will have to be found. It may be that the only way to do this is to use a perhaps arbitrary percentage figure of risk, as was done for rarity in the previous legislation.

Proposed section 32(4)-(6) re-enacts existing provisions. However the provisions have always struck me as unnecessary. If a person is injured through treatment, it should make no difference whether this was as part of a trial, with or without consent. The injury and consequences for the individual are the same. The scheme does not differentiate between risky and less risky sporting activities; nor should it do so here.

Proposed section 32(7). This extension of cover (where infection, for which there is cover, is transmitted to a third party) should not be restricted to cases where the original cause of infection was treatment, but should include all cases where the originator of the infection has cover (eg where the cause was a work injury).


Clause 24

The review process should be made fully independent of ACC and particularly of Third Party Insurers. It is a breach of natural justice that insurers can black-list-as at least one has done to my knowledge - those reviewers who have found against the insurers in the past. Claimants cannot choose reviewers; nor can plaintiffs or defendants in court. The power to ACC and insurers in section 137 to appoint reviewers, whether directly or through an intermediary, is unjust, outdated and anomalous: it undermines the integrity of the review process.

The proposed new section 134(1A) should be omitted. There is no reason why discretion should not be reviewed: it happens throughout the social security system for example. Under standard administrative law principles, the issue becomes one of whether the initial ACC decision was reasonable (not necessarily the same as the reviewer might have made). If Parliament wishes to make that explicit, a clause such as the following could be inserted:
"Notwithstanding section 145, when considering decisions made under section 68(3), a reviewer must determine only whether the exercise of discretion was reasonable, and must not substitute a new decision. A reviewer who determines that an exercise of discretion under section 68(3) was unreasonable must refer the matter back to the Corporation which must make a fresh decision in a timely manner."

Clause 46
I am encouraged by provision for mediation of disputes. If that eventuates formally, there should be a clear differentiation between the adjudication function and the mediation function in review (as occurs in DRSL) and I recommend that the personnel be renamed "Adjudicators" and "Mediators" to reflect this.

Thank you for considering this submission. I regret that pressure of time does not allow me to comment in more detail on other parts of the Bill.

Ken Mackinnon
Head of Law
University of Derby
Kedleston Road

[+44] 1332 591858 (w)
[+44] 1332 832450 (h)

24 September 2004

#2 User is offline   hukildaspida 

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Posted 22 July 2014 - 03:44 PM

Title: Professor
First Name: Ken
Surname: Mackinnon
Telephone: +44 (0)1224 263914
Email: [email protected]

Role and Responsibilities

Professor Ken Mackinnon is Head of the Law School. After teaching at the University of Aberdeen for 12 years, he moved to New Zealand as a foundation member of the new School of Law at the University of Waikato in 1990. The first new law school in New Zealand for 100 years where they developed a modern contextual LLB curriculum, one that encouraged Maori into the legal profession. His enjoyment of the significant administrative tasks involved in setting up the school led to his studying, by distance learning, for a Master of Educational Administration at the University of New England in Australia. During 2002 and 2003, he took leave from the university and was a full time Reviewer (adjudicator) of disputed personal injury claims under the New Zealand Accident Compensation Corporation (ACC) scheme. He then spent a year as Head of Law at the University of Derby.

Returning to New Zealand, he became Associate Dean and Head of Law at Waikato. He continued to hear ACC cases on a part-time basis, and was appointed to the Legal Aid Review Panel.

In February 2010, he started as Head of Law in Aberdeen Business School at the Robert Gordon University.

He has taught a wide range of subjects including Jurisprudence, Legal Ethics, Tort Law, Social Security Law, Employment Law, Privacy Law, and Legal Systems.

Research Interests and PhD Supervision

He is completing work on the contribution to legal thinking made by the Scottish philosopher, David Hume. His current research relates to personal injury compensation and mechanisms for solving disputes in that area. He is part of a Scottish Government working group on no-fault compensation for medical injury.

He is interested in supervising PhD candidates whose topic relates to legal theory, legal education, accident compensation/ personal injury, tribunals, access to justice, or professional ethics.

Selected Publications

Mackinnon, K. "The Divine Hand Slips: Medical Accidents in Godzone" Australasian Law Teachers Association Conference, Sydney, 2009.

Mackinnon, K. "Redefining the Facts – Marginalising the Claimant?" pp 122-138 of Creyke R (ed), Tribunals in the Common Law World (Sydney: Federation Press: 2008).

Mackinnon, K. "Regulating Legal Education – the New Zealand Model" Association of Law Teachers Conference, Plymouth, 2007.

Mackinnon, K. "The Academic as Fiduciary – more than a metaphor" (2007) 1 Canadian Legal Education Annual Review 115-140.

Mackinnon, K. "Thin Skulls, Brittle Bones and Sensitive Souls, and how New Zealand's ACC Scheme deals with them" Proceedings of the Australasian Law Teachers Association Conference, Hamilton, NZ, 2005.

Mackinnon, K. The Laws of New Zealand: Social Welfare (Wellington: Butterworths, 1994) (140pp) – revised edition 1998 (180pp); revised edition 2002 (178pp).

Mackinnon, K. "The 'Best Qualified' – for What? The place of affirmative action in a mission-focused New Zealand law school admissions policy" (2000) 4 Yearbook of NZ Jurisprudence 71-117.

Mackinnon, K. "Doing Away with Unemployment Benefit?" (1995) 3 Waikato Law Review 185-206.

Mackinnon, K. "Adam Smith on Delictual Liability" in Malloy, R.P. & Evensky, J. (eds) Adam Smith and the Philosophy of Law and Economics (Dordrecht: Kluwer, 1994) pp 83-112.

Mackinnon, K. "Giving it all away? Thomas Reid's retreat from a natural rights justification of private property" (1993) 6, Canadian Journal of Law and Jurisprudence 367-88. (see PDF below)

Mackinnon, K. "The Reasonable Man as an Impartial Spectator" in Campbell TD (ed): Law and Enlightenment in Britain (Aberdeen: AUP 1990) pp 87-101 (ch 9).

Mackinnon, K. "Thomas Reid on Justice: A Rights based Theory" in Dalgarno M and Matthews E (eds): The Philosophy of Thomas Reid (Dordrecht: Kluwer 1989) pp 455-67.

Mackinnon, K. "George Turnbull's Common Sense Jurisprudence" in Carter J and Pittock J: Aberdeen and the Enlightenment: Proceedings of Conference held at the University of Aberdeen (Aberdeen: AUP 1987) ch 11.

Mackinnon, K. "James Lorimer's Common Sense Approach to Legal Philosophy" (1987) Juridical Rev 12-23.

Mackinnon, K. "The Academic as Fiduciary: More than a Metaphor?"

Mackinnon, K. "The 'Best Qualified' – form What? The place of affirmative action in a mission-focused New Zealand law school admissions policy"

Mackinnon, K. "Giving It All Away? Thomas Reid's Retreat from a Natural Rights Justification of Private Property"

#3 User is offline   MINI 

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Posted 22 July 2014 - 04:04 PM

Good find guys.

Should have realised he was too intellegent to stay with ACC.

No wonder the Judge thought it was a very will done Review, when ACC had told me DRSL had no Jurisdiction, I just pushed ahead and he did a hearing on the papers. ACC and self just put in the paperwork and he did the rest.

The outcome being that they had actually breached their own law. So he gave them a date to pay up my overseas w/c by!!

Good going Mr MacKinnon. I spoke with him on the phone and found he was a helpful and nice individual. I havent heard of others and there outcomes with him. But he was just what I needed, as I didnt realise at the time that ACC may actually take as long as they like to make a decision under the 2001 Act, concerning entitlments. It is only 'cover' that they have time limits in place. That is a change from the previous acts.

Cheers for this


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