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Torts: ACC 19th May: ACC replaces prior parts of personal injury tort. ACC operational about 1974 Before = common law tortious actions (e.g. negligence, trespass) available as remedy but only if you could point to someone else and provide evidence to support claim. Not very satisfactory, costly, slow. Before ACC only 4% of accident victims received FULL compensation for injuries Workers compensation in place since 1900. Came in after a mining accidnet. Growing dissatisfaction with this scheme = beginnings of ACC. To begin with WCS was just dangerous activities. Employee's paid insurance benefits dictated by gov't. Rememdies only up to 6 yrs. All sorts of limits. Private insurance - not widely used except by wealthy for general health but used for motor vehicle accidents. Compulsory to have 3rd party insurance if owned and operated a car. Social Security System - benefits (of minimal level) available. 1966 = trade unionists pressured gov into setting up commission. Aim to fix compensation. Woodhouse asked for brief to be extended to injury across the board not just at work. Post war = strong sence of social responsibility - 60's = growth of strong social welfare system. Contry prosperous could afford to do a lot more than at any other time Woodhouse report focussed on communtiy responsibility. CM pg 1. Comprehensive entitlement - not just that workmen should be treated equally e.g. whether the accident is at home or work both incur same result = can't be rpoductive - everyone should be included, young, elderly, housewives. Complete rehabilitation - need to have everyone assisted to get back into worklplace in best way e.g. rehabilitation adapting homes to cope etc. Real compensation - realistic assessment of acutal loss on a suitably generous basis. Administrative efficiency in order to run comprehencsive community based scheme it had to be state run NOT competing insurance companies. Steered clear of courts. Principles turned into key concepts
1. Social Contract - nation had to agree. Give up right to sue for personal injury. Might get a little less under ACC in some cases but everyone would get something quite generous.
2. No fault - all entitled as don't need to point finger
3. Personal injury by accidnet (not sickeness, yet although no logic in that)
4. Static monopoly scheme - take away from realm of insurance
21st May: 1972 ACC Act: Didn't go so far as Woodhouse has hoped. 1973 Labour Government, amended the Act. Comprehensive no fault scheme that covered everyone. Funding of the scheme - supposed to be a community responsibility. Special levy placed on employers. Levy on motor vehicle owners. General tax levy for the non earners. Key Benefits: Cover all medical treatment for injuries and for rehabilitation, administered through hospital system. Extra rehabilitation and support. Workers compensation - earnings based weekly payment at 80%
of earnings immediately prior to accident, available to every worker no matter where the accident happened. Provisions for lump sum payments - Woodhouse did not advocate this at all. Trade unions saw the erosions of their rights if lump sum payments were taken out. Legislators and government agreed to introduce some lump sum payments in addition to weekly payments. For permanent loss or impairment of bodily function ($17,000 initially). For pain and suffering and loss of enjoyment of life ($10,000) Gateway provisions covered in three particular areas: Section declaring the Act a code, no opting out allowed. Barring provision that spelled out that you weren't allowed to sue. 1982 Act: s26(2)(a) All persons who suffer personal injury by accident in NZ shall have cover under this Act. Physical injury includes:
- Physical and mental
- Medical, surgical or first aid misadventure Nothing specific in the original legislation about medical misadventure - doctors saw a provision in ACC act as ideal - would protect themselves from malpractice suits. Occupational disease - does not include:
- Strokes and heart attacks, unless work related
- Damage to the body or mind caused exclusively by disease, infection or the aging process Four historical cases look at how the legislation was applied: Wallbutton v ACC 1983, HC.
- Back injury case, but sometimes regarded as aging, disease, sometimes workplace related or accident related
- Mrs Wallbutton a worker, had a bad back - pre existing medical condition
- 1976 went down to the letterbox to get the milk, bent down and her back gave out
- As a result, she was unable to go back to work for 9 months
- Turned down by ACC Problems: Bending down an accident? She already had a bad back. She succeeded in the case. Clearly indicated the courts were going to take a very generous view of the Act. Looking at the action from the victim's point of view. Unintended event with misfortune, but could cover an intentional act with unintended misfortunate results.
Bad back already?
(b)(ii) caused exclusively by disease, infection or the aging process. Judge agreed that she managed to recover from her back problem and could go back to work. Her problem was not caused exclusively by her bad back. Green v Matheson:
- Cervical cancer debarcle at National Womens' Hospital.
- Miss Matheson had reported to the hospital because she had a test, and it showed precancer cells
- Immediate action should have been taken
- Under the care of Dr Green, he thought that not all early warning signs were likely to turn into full blown cancer.
- Miss Matheson not given any real treatment, had full blown cervical cancer
- She found out she wasn't given any treatment. She brought common law actions, trespass to the person, negligence. If she was covered by ACC she wouldn't be able to bring any claims. CA looked at the ACC legislation and who was covered. Medical misadventure covered by ACC. Sir Robin Cooke said would be covered anyway - any unlawful mishap or untoward event, something goes wrong, even if it was the result of a deliberate action by another. "Mishap causing harm to the person". Should be looking at the gateway provision as a "whole integrated phrase". Wasn't prevented from bringing an action for exemplary damages. ACC v E:
- Mental injury included in ACC
- Claimant had been told by her boss that she was to attend an in residence training session for four days
- Proved too much for her, she broke down and ended up in psychiatric care
- Applied for cover under ACC She succeeded in CA. Talks about physical and mental injury, can have either/or. Mental injury on its own was enough. Opened the door to many claims: Examples: Solicitor claimed from ACC $10,000 for pain and suffering. Mental injury from being depressed. He'd gone to bank manager and asked for a loan, bank manager said no. Court said real cause wasn't bank manager, it was his business being in trouble. Cockran v ACC:
- Son had been involved in brutal attack
- Sat at his bedside for 20 hours as he died
- Made a claim for personal injury She said from my POV I had to go through watching my son die. Claim allowed. Had she sued in the common law courts she would not have suceeded. ACC v Mitchell:
- Baby who had suffered near SIDS episode
- Needed a lot of care and support, claimed under ACC.
- Nobody knew what caused the SIDS, no medical condition, no sickness or disease. Open textured generous interpretation. Claim for Mitchell allowed. This meant that some other sudden medical happenings could be covered.
O v ACC:
- Wife claimed she was entitled to ACC
- Husband's vasectomy had failed and she had become pregnant
- From her POV there had been a misfortunate accident Court allowed her claim at the time. Legislation changed after this.
26th May: Lump sum payment up to $10,000 not usually available in many common law situations, especially on its own. Sexual abuse cases - legislative exceptions drawn in and maintained sexual abuse victims entitled to free support and rehabilitation.
$10,000 came to be a common windfall for the sexual abuse cases. Different from $17,000 permanent injury. People who felt hard done by, who weren't eligible for ongoing work related compensaton, became commonplace for them to receive the $10,000 pain and suffering amount. Scheme was so successful that it put huge pressure on the coffers. Concerns about whether the scheme could be maintained. 1986/1987 announcement made because of funding problems, would have to be a 300% increase in the levvies. Labour government still committed to philosophical basis, and in 1990 proposed a bill to extend ACC. Voters did nto support this change - National comes into power. 1992 ACC Act.
- Significant change in direction
- Gateway provisions became considerably harder
- Social contract stayed
- Both the lump sum payments gone, one replaced with ongoing payments.
- Direct levying of employees, burden shifted away from employers
- Allowed reassessment of long term injury so people couldn't claim forever.
- Work capacity tests brought in Now a straight accident compensation Act, no longer rehabilitation. Language changed to 'insurance' speak. Workplace injury area, had to turn to private insurers that employers had to nominate. Lasted a term, 1999 Labour came back in and reversed that change. 2001 Act is substantially what we have at the moment. Went back to 1992 Act with some liberalising changes. 2005 Amendment Act made some important changes to the medical misadventure aspect. Pressure in the workplace area for some consideration to be given in the are of mental injury caused by workplace conditions. 2001 APRC Act: Still our current Act. Penalty levies - trying to stop the mentality that ACC will cover it, we don't need to worry about safety. Widen the funding base and target it more specifically. Benefits still include medical expenses, rehabilitation, administration, included in Schedule 1.
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