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Faculty of Law · Te Kauhanganui Tātai Ture : Student Research Papers

Permanent URI for this collectionhttps://ir.wgtn.ac.nz/handle/123456789/11067

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Browsing Faculty of Law · Te Kauhanganui Tātai Ture : Student Research Papers by Subject "ACC"

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    The Triple Lottery
    (Te Herenga Waka—Victoria University of Wellington, 2017) Neal, Bronwyn
    Under s 32 of the Sentencing Act 2002 reparation may be imposed for “emotional harm” and “loss or damage consequential on [...] physical harm”. This conflicts with New Zealand’s Accident Compensation Scheme (ACC) if the physical or emotional harm is covered by ACC. Following the Supreme Court decision in Davies v Police, amendment to s 32 allows reparation to be imposed for “statutory shortfalls” in ACC entitlements. In practice the sentence has been misapplied and is a triple “lottery” for victims. Judicial misapplication of reparation has resulted in layering of compensation, facilitating double recovery. Reparation for “emotional harm” and “loss or damage consequential on [...] physical harm” was inserted to include victims of “real crime” in the sentencing process and provide them with more avenues to obtain compensation, but in practice reparation payments have disproportionately affected offenders under the Health and Safety at Work Act 2015 (HSWA). The purpose of this paper is to assess whether the sentences of reparation for “emotional harm” and “loss or damage consequential on [...] physical harm” should be retained in light of the conflict with ACC and recent HSWA cases.
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    A Truly No-Fault Approach to Treatment Injury Cover in Accident Compensation
    (Te Herenga Waka—Victoria University of Wellington, 2013-01-01) Upperton, Ruth
    New Zealand’s accident compensation system is ‘no-fault’, meaning that New Zealanders are compensated for their injuries whether or not they can find someone to blame for their misfortune. However, until 2005, claimants injured while receiving medical treatment had to show either that their injuries were caused by negligence, or that their injuries were both rare and severe. The negligence standard was taken from tort law, and required the claimant to show that the injury was a registered health professional’s fault.  This fault requirement created many of the problems that tort law had in the past: it was inefficient, arbitrary, and created a blaming culture that bred hostility between the Accident Compensation Corporation (ACC), the injured, and health professionals. In 2004, ACC published a review of the medical misadventure provisions, calling for them to be replaced by no-fault compensation provisions in line with the spirit and content of the rest of the accident compensation scheme. In 2005, medical misadventure became treatment injury, and both application and acceptance rates rose for claims concerning injuries received during medical treatment. However, the treatment injury provisions still contained fault elements, despite the legislature’s claim that the provisions were no-fault.  In this paper, I will address the role of fault in a compensation scheme for those injured during medical treatment. First, I will define fault in its tort law context and outline some strengths and weaknesses of fault as a legal concept. Then, I will provide a short overview of New Zealand’s accident compensation scheme, the medical misadventure provisions, the push for reform, and the structure of the treatment injury provisions. This will give background to an in-depth discussion of the treatment injury provisions’ incorporation of fault standards. Also relevant to this discussion is the accident compensation scheme’s reporting mechanism, which potentially complicates ACC’s role as purely an injury compensating, preventing and rehabilitating body. Finally, it is necessary to consider whether compensation itself is inherently fault-based, an argument raised by some commentators.  My conclusion is that some aspects of the treatment injury provisions still use fault to determine cover in some situations. The provisions give particular weight to the fault of the claimant in causing her own injury. This use of fault standards can be removed from the treatment injury provisions with some minor amendments, which are set out at the end of this paper.