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Accident Compensation Committee Report NZ Law Society 12 July 2004

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Posted 15 July 2004 - 10:33 PM

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Accident Compensation Committee report - 12 July 2004

The committee published a note in LawTalk 622 (12 April 2004), which asked practitioners for comment on the ACC appeal process. Mike Mercier, Manager of ACC Legal Services, responded, noting that practitioners employed within ACCís legal services agreed that delays and the late filing of evidence and/or submissions were undesirable and disadvantaged both appellants and respondents.

Mike Mercier said that, as a publicly-funded organisation, ACC tried to be fiscally responsible and maximise its limited resources. This meant that instead of instructing lawyers when a notice of appeal was filed, the corporation did not take any action until the case was set down for hearing. This meant that even if the appellantís submissions were filed, the response would be delayed. This invariably led to shortened response times.

Part of the problem was that there had been a dramatic increase in appeals. There was now an appeal every fortnight in Wellington when previously they had occurred once every second month. The backlog of cases meant the registrars set down cases as soon as possible, regardless of the state of the file.

The committee believes there should be strict timelines regarding the filing of documents. If these are not followed, a pre-trial conference should be called. However, the conference should be on request rather than granted automatically. Appeals should not be set down until all the evidence and submissions are filed.

Report on ACC
The report of the Controller and Auditor-General, entitled ACC: Case Management of Rehabilitation and Compensation, was released in May. The report said "no systemic failings" had been found in the way ACC managed cases.

The report was confined to administrative functions, which meant it did not cover the systemic issues faced by medium- to long-term claimants.

The following excerpt appeared to encapsulate the ACC philosophy: "ACC has become strongly process-oriented and aims for continual progress on claims files, to actively keep claimants moving through the system. While this is efficient for ACC, and represents a more comprehensive approach to rehabilitation, it sometimes results in criticism by claimants that ACC is impersonal and lacking in empathy. ACCís response is that its role is simply to provide those entitlements required by law, and nothing more. Nevertheless ACC must now act in accordance with its rights and obligations under the Code of ACC Claimantsí Rights".

The committee discussed a 523-signature petition, which was tabled in Parliament by Green MP Sue Bradford. The petition asked "that, due to the widespread dissatisfaction among accident compensation claimants with the claims management practices of the Accident Compensation Corporation and its subsidiary companies, the House of Representatives convene a select committee inquiry to inquire into such claims management practices".

The committee has previously noted the possibility of the Transport & Industrial Relations Committee holding an inquiry into ACC. The select committee had said it was awaiting the release of the Auditor-Generalís report before it decided on any action. The committee will now write to the select committee noting the release of the report and the petition. It will register its support for an inquiry and suggest that the inquiry should cover Dispute Resolution Services Ltd and the Employer Partnership Programme.

Independence allowance
ACC now gives long-term claimants the choice of continuing with their independence allowance under the 1998 Act or receiving a lump sum payment. The allowance is reviewed every three months and the lump sum is, in effect, payment covering five years of allowances. Claimants receive a letter asking them to fill in a form and nominate their choice.

With respect to claimants with terminal incapacity, the legislation denied economic relief. The normal process is inappropriate in this type of case and discretion should be available.

The committee is to write to the ACC regarding the assessment for cases of terminal incapacity, for example asbestosis, and suggest that, in this situation, assessments should be done immediately.

Hilary Unwin

NZLS Secretariat

#2 User is offline   Kiwee 

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Posted 16 July 2004 - 01:59 AM

From ODT 10 July

Our accident compensation scheme invites more dangerous and negligent activity in society, writes ANDREW STRAW. It is time the legislation was revisited.

Fast and efficient maybe, but where is the justice?

A MERICAN lawyers would be surprised to find that New Zealand, another common-law country, has virtually eliminated the tort action. A tort action is a law suit to compensate for injuries or death negligently caused by another person or corporation.

As most New Zealanders know, if you are injured in a car accident, the Accident Compensation Corporation (ACC) pays compensation out of taxpayer funds.

According to the ACC website, "People do not have the right to sue for personal injury, other than for exemplary damages."

In other words, if someone negligently causes you harm, there is no compensation for pain and suffering, and virtually no punitive damages (exemplary damages are usually very small).

The ACC claims injuries are compensated more quickly because slow courts are not involved in deciding claims, and victims are covered, no matter who was at fault. New Zealand lawyers with whom I have talked have said this system is more efficient than the United States tort-law system, and reduces litigiousness in society.

All of those things may be true of the accident-compensation scheme, but is this system just?

If a person (or a whole community) is poisoned by a corporation's negligent release of chemicals into the environment, shouldn't that person be allowed to show the damages done to him or her and ask a jury of his or her peers to set an appropriate compensation level?

The public-health system supposedly takes care of medical problems, and the ACC covers time lost from work, but isn't that a miserly assessment of the damages? How can there be no compensation for pain and suffering of the victim? How can there not be sufficient punitive damages to deter the wrongdoer from repeating its negligence?

Remember the movie Erin Brockovich ? The ACC would have tied Erin's hands, and the New Zealand public-health system might not have had the funds to treat all the people affected by cancers and other diseases in a timely fashion.

In short, the accident-compensation scheme invites more dangerous and negligent activity in society.

It takes away responsibility from those who do wrongs, puts the onus for paying compensation on the taxpayer, inadequately compensates the victim when serious pain and suffering have taken place, and does not deter the wrongdoer from committing more torts.

The ACC is a conservative's dream. Republicans in the US have been clamouring for "tort reform" for years, attempting to deny victims justice by capping damage awards and protecting the industries that contribute to their campaign coffers. US President George W. Bush has even proposed a nationwide cap on medical-malpractice awards.

Naturally, the American Trial Lawyers Association and victims' rights groups have pointed out how unjust such a cap would be.

It is only a matter of time before the conservative movement in the US catches on to the way tort victim compensation occurs in New Zealand. American conservatives will point to the New Zealand system and say, as the ACC does, that damages are capped and the system is more "efficient". A miserly compensation scheme that protects those who commit torts, however, is not the progressive, just New Zealand policy we should expect.

There is an alternative route New Zealand could take. The compensation-scheme legislation could be modified to allow tort actions, while still covering loss of work income. Then, if one wins one's court case, damages for loss of work income would be excluded from the court's award. And if one loses the court case, one could still be compensated by the ACC for loss of income. Such tort reform should also provide the possibility for pain-and-suffering awards, as well as sufficient punitive awards to deter a repetition of the bad behaviour.

Governments need to protect the little guy, and taxpayer-funded health care and consistent, no-fault lost-wages compensation for injuries is a good start. But governments should also attempt to use their policies to create a safer and more just country for everyone to live in. "Educating" those who would negligently commit torts is not enough. There must be serious financial penalties and compensation for negligently harming other people's health or even taking their lives. Justice demands it.

# Andrew Straw is an American lawyer and freelance columnist currently living in Dunedin. He is admitted to the bars of Indiana and Virginia.

#3 User is offline   jocko 

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Posted 26 March 2010 - 09:21 AM


#4 User is offline   jocko 

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Posted 26 March 2010 - 09:22 AM

Part of the problem was that there had been a dramatic increase in appeals. There was now an appeal every fortnight in Wellington when previously they had occurred once every second month. The backlog of cases meant the registrars set down cases as soon as possible, regardless of the state of the file.
2004? there will be 2 a day now

#5 User is offline   hukildaspida 

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Posted 09 September 2012 - 03:17 PM


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