FORTY YEARS OF ACCIDENT COMPENSATION IN NEW ZEALAND

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1 FORTY YEARS OF ACCIDENT COMPENSATION IN NEW ZEALAND THOMAS M. COOLEY LAW SCHOOL: KRINOCK LECTURE 2011 MONASH UNIVERSITY, MELBOURNE, AUSTRALIA STEPHEN TODD * INTRODUCTION In all common law jurisdictions other than New Zealand a primary function of the law of torts and particularly the tort of negligence is to compensate for damage caused by personal injury. However, in the Accident Compensation Act of 1972 the New Zealand Parliament introduced a wholly new scheme which replaced the common law action for damages for personal injury with an accident compensation scheme. A system of awarding damages based upon proof of another person s responsibility for causing injury was seen as incapable of dealing with the serious social problem of accident victims needing a secure source of financial support after having been deprived, permanently or temporarily, of their capacity to work. So from the outset the right to recover compensation under the new scheme was based not on any question of liability but simply on the claimant coming within one of the statutory conditions for cover, in which case he or she could make a claim for statutory compensation pursuant to a simple administrative process. At the same time the right to sue in tort for damages for personal injury was barred. The accident compensation scheme continues in full force today. Over the years there have been various changes, some of them quite major, affecting the coverage of the scheme, the benefits it provides, the method of delivery of those benefits and the funding of those benefits. Yet in its fundamentals it continues to operate on much the same basis as it did when it came into force, in 1 April So personal injury litigation in New Zealand has virtually disappeared. Only in exceptional cases, where the injury in question is not covered by the scheme, can it still be maintained. * Professor of Law, University of Canterbury (NZ); Professor of Common Law, University of Nottingham (UK).

2 190 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 Having reached 40 th anniversary of the first Accident Compensation Act, let us now review the operation of the scheme. We will consider first the background in the Woodhouse Report and the four reenactments leading to the scheme s present day form, in the Accident Compensation Act We will then examine the cover provided by the scheme, its relationship with the common law, the benefits it provides and the funding of those benefits. We will then be in a position at least to make a broad evaluation of its success. The founders of the scheme had high hopes that it would provide fair compensation quickly and efficiently to deserving victims at an affordable cost. We need to see whether these hopes have been fulfilled. 1 THE WOODHOUSE REPORT The reasons for the introduction of the New Zealand accident compensation scheme, and its fundamental design, are found in the Report of the Royal Commission inquiring into personal injury law in New Zealand (usually known as the Woodhouse Report after the name of its Chairman, the Hon Justice Woodhouse). 2 The Royal Commission was charged with investigating and reporting upon the law relating to compensation and claims for damages for incapacity or death arising out of accidents (including diseases) suffered by employees. Accordingly it examined the remedies for injured employees at common law and under the workers compensation legislation 3 in order to determine whether change was needed and, if it was, to consider what form it might take. Having made its inquiries the Commission was convinced that both the action for damages and the workers compensation system fell clearly short of providing a satisfactory system of compensation. First, the common law process could be seen to cause serious injustice and to perpetuate a number of anomalies. The key objections were that the fault theory had developed into a legal fiction, for the economic consequences of negligent conduct were spread via 1. Substantial parts of what follows are based on Todd The Law of Torts in New Zealand, Brookers, Wellington, 5th ed, 2009, ch 2, and on Todd Treatment Injury in New Zealand (2011) 86 Chicago-Kent Law Rev Royal Commission of Inquiry Compensation for Personal Injury in New Zealand, Wellington, Government Printer, Workers Compensation Act 1956 (NZ).

3 2011] ACCIDENT COMPENSATION 191 insurance over the whole community; the risks of litigation the difficulties of proof, the ability of advocates, the reactions of juries and mere chance itself turned the system into a lottery; and the tort system was cumbersome, inefficient and extravagant in operation to the point that the cost of administration absorbed more than 40 % of the total amount of money flowing into the system. As for the workers compensation scheme, this worked upon a limited principle, was formal in procedure, was meagre in its awards, and was ineffective in the field of prevention of accidents or the physical or vocational restoration of the injured. These last two areas, it was said, should be at the forefront of any general scheme of compensation. The Commission concluded that both the action for damages and workers compensation fell clearly short of providing a satisfactory system of compensation. It recognised that an overall solution might be the integration of a comprehensive scheme of accident compensation into the social security framework covering both accidents and illness. There would be great advantage in doing this, for it would give an organic structure and unity to the whole process. However, integration was not feasible if compensation would then have to take the form of the same flat rate payments for all, which would be unacceptable and unjust. The only way in which a comprehensive system could operate equitably was by linking benefits to earning capacity and by taking into account permanent physical disability. The Commission thought that the next move might be in this direction, but did not itself pursue the matter. It was seen as unwise to attempt one massive leap when two considered steps might be taken, but the experience gained by taking the first step would assist in moving towards a comprehensive plan. As for the first considered step, the Commission recommended that there should be a comprehensive system of accident prevention, rehabilitation and compensation which would avoid the disadvantages of the existing processes, meet the requirements of community responsibility, comprehensive entitlement, complete rehabilitation, real compensation and administrative efficiency, and satisfy the requirement of financial affordability. The object should be compensation for all injuries, irrespective of fault and regardless of cause. In due course Parliament acted on these recommendations. But the second step has never been taken. So New Zealand has developed two different systems for compensating incapacity, depending on the cause of the incapacity in question, with markedly less generous

4 192 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 benefits being available under the social security scheme than those which apply in the case of accident compensation. IMPLEMENTATION The Woodhouse proposals were enacted in the Accident Compensation Act This provided for compensation for all accident victims coming within the statutory conditions for cover. At the same time the Act barred the right to sue or to claim workers compensation for those covered by the scheme, following Woodhouse s view that these remedies became irrelevant. So the legislation denied access to the courts in return for the perceived advantages of the statutory scheme. The exchange has sometimes been spoken of as a social contract or social compact. 4 The purposes of the 1972 Act were to promote safety, to promote the rehabilitation of persons who suffered personal injury by accident covered by the scheme and to make provision for the compensation of those persons or their dependants. Personal injury by accident was not fully defined. The Act merely stated that it included the physical and mental consequences of the injury or accident, medical misadventure, incapacity resulting from occupational disease, and bodily harm caused by the commission of certain criminal offences. The precise ambit of the concept was left to be determined by the decision-making process and the system for reviews and appeals established by the Act. So the system was deliberately given a degree of flexibility. Where coverage existed it was compulsory. No-one could opt out and seek damages instead. Victims of injury were entitled to weekly compensation for loss of earnings at the rate of 80 per cent of the claimant s earnings prior to the accident, up to a prescribed maximum figure, lump sums for loss of bodily function, pain and suffering and loss of amenity, again with prescribed maximum figures, medical expenses and other incidental costs, and death benefits. Payments were funded by levies payable by employers, the self-employed and motor vehicle owners, and also out of general taxation. The scheme was administered by the Accident Compensation Commission, with functions which included the making of payments to those entitled and the taking of various steps 4. Brightwell v ACC [1985] 1 NZLR 132 at per Cooke J (CA); Queenstown Lakes DC v Palmer [1999] 1 NZLR 549 at 555 per Thomas J (CA).

5 2011] ACCIDENT COMPENSATION 193 to promote safety and rehabilitation. Other features included the processes for making a claim, limits on entitlements, dispute resolution, incentives to safety and issues of economic deterrence, the basis for calculating the levies, and further matters of management and administration. DEVELOPMENTS TO 2012 Since the passing of the 1972 Act there have been four reenactments of the accident compensation scheme as a whole in the Accident Compensation Act 1982, the Accident Rehabilitation and Compensation Insurance Act 1992, the Accident Insurance Act 1998, and the Injury Prevention, Rehabilitation, and Compensation Act We need to look briefly at the aims of each of these enactments. The Accident Compensation Act 1982 left coverage untouched, made some minor changes to entitlements, turned the Accident Compensation Commission into the Accident Compensation Corporation (hereafter the ACC) with a board of directors, and, most significantly, placed the funding of the scheme explicitly on a pay-asyou-go basis. Under pay-as-you-go funding, levies for the year pay all of that year s costs, including both new and old claims. They do not cover the continuing costs of claims extending into future years. Under full funding levies must meet all the costs of claims made during the year. They do not include past claims, but do include the continuing cost of claims for the full duration of an injury. At its inception the scheme was not fully funded, but because there were no old claims payments in were substantially greater than outgoings. This partial funding in the early years meant that substantial reserves were accumulated, leading to pressure from employers to reduce the cost of accident compensation. The government of the day took heed and made substantial cuts in the levies. As a result the reserves were depleted very rapidly, and this contributed to the scheme s growing financial instability. The government once again intervened, by imposing huge levy increases (in some cases exceeding 500%) and by asking the Law Commission to review how the scheme was operating and to make recommendations accordingly.

6 194 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 The Law Commission s 1988 Report 5 denied that the scheme was facing a financial crisis and, far from recommending cuts, it strongly supported expanding the scheme so as to bring sickness and nonaccidental incapacity under its umbrella. The Commission considered that the demarcation between injury and illness was clearly anomalous and that it ought to disappear, sooner rather than later. It thought that this could be done in stages, by accepting congenital incapacities already supported by the social welfare system, by later taking in higher level disabilities and finally including others less serious. On the other hand, lump sum payments were seen as illogical in relation to the income maintenance purposes of the injury scheme, and for sickness they would become incongruous. Serious lost physical capacity and any economic loss were better met by periodic payments. Lump sums should, therefore, be abolished. The Commission was satisfied that their scheme would not lead to an explosion in costs and could be funded by levies, investment income and taxation, much as already happened. While the costs of the scheme had been rapidly going up, by far the largest area of increase was in the amounts payable to those who claimed in earlier years who were still in receipt of payments from the Corporation. The cost of claims in the first year had increased only by small amounts. In 1987 the whole of the real increase in spending was for earlier years. So the scheme was doing what it was intended to do compensating the seriously incapacitated without a limit of time. The Labour government accepted the Commission s recommendations and tabled a Bill creating a comprehensive income maintenance and rehabilitation scheme available to all persons who suffered incapacity, regardless of cause. However, shortly afterwards, the government lost power in the election of 1990, and the Bill accordingly lapsed. The incoming National government then came to the conclusion that the existing scheme was too expensive, and it proposed instead a reform of the scheme aimed at widening and reallocating its funding base, reducing its costs and removing certain judicial extensions to its coverage. 6 Shortly afterwards these changes 5. New Zealand Law Commission Report No 4 Personal Injury: Prevention and Recovery, Government Printer, Wellington, Accident Compensation A Fairer Scheme, Department of Labour, Wellington, 1991.

7 2011] ACCIDENT COMPENSATION 195 were introduced by the Accident Rehabilitation and Compensation Insurance Act As regards the funding of the scheme, the new Act retained payas-you-go as the basis for the levies, but substantial changes were made to existing sources of funding and new sources were introduced. In particular, employers met only the cost of providing coverage for injury sustained in the course of employment (except where a motor vehicle was involved), and all earners paid a levy to meet the cost of coverage for accidental injury. As regards benefits, there was a new work capacity test aimed at moving accident compensation claimants who could not find work onto the unemployment benefit; rehabilitation assistance was available only in restricted circumstances; lump sum payments for loss of faculty and pain and suffering were abolished and replaced by an independence allowance set at low levels; and entitlement to compensation ended when a claimant became entitled to superannuation payments. Further savings were sought to be made by reining in the ability of the judges to give an expansive interpretation to the provisions governing the ambit of the scheme. 7 The bases for cover were similar to those laid down in the earlier Acts but their scope was precisely, and in some respects far more restrictively, defined. So there was cover for personal injury caused by an accident, by employment-related disease or infection, by medical misadventure and by treatment for personal injury, and also for mental or nervous shock suffered by the victims of certain specified sexual offences. However, whereas formerly these categories all fell within the broad concept of personal injury by accident, they were now treated as separate categories and made subject to a series of detailed definitions. Judicial discretion in determining their limits was entirely removed. The next significant development came with the passing of the Accident Insurance Act This left cover and benefits as they 7. For leading authorities exploring the concept of personal injury by accident pre-1992, see Re Chase [1989] 1 NZLR 325 (CA); Green v Matheson [1989] 3 NZLR 564 (CA); Willis v Attorney-General [1989] 3 NZLR 574 (CA); ACC v E [1992] 2 NZLR 426 (CA); ACC v Mitchell [1992] 2 NZLR 436 (CA); Childs v Hillock [1994] 2 NZLR 65 (CA). 8. For evaluations see Todd, Privatization of Accident Compensation: Policy and Politics in New Zealand (2000) 39 WASHBURN L.J. 404, , and articles there cited.

8 196 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 were but privatised the delivery of the statutory benefits for the victims of accidents at work. The monopoly control exercised by the Accident Compensation Corporation was removed and employers were obliged to insure with a private insurance company or a new state-owned enterprise set up to compete with the private companies. A regulatory regime aimed to make sure that persons with cover received their entitlements. The purpose behind the reform was to facilitate freedom of choice, promote a greater emphasis on safety and rehabilitation, and encourage the efficient management of claims. The government view was that a publicly-administered scheme lacked sufficient incentives to safety and efficiency. The introduction of private enterprise would reduce the overall costs of injury, by an increased focus on prevention and rehabilitation and on the monitoring of workplace safety performance. Further, pay-as-you-go funding restricted the ability of the Corporation to reward innovation in injury prevention, as employers paid premiums that related largely to injuries that had already occurred. So henceforth the scheme was to be financed on a fully funded basis. Whether these hopes for efficiency and accident prevention would have been fulfilled cannot be known, for the new privatised regime was in force for just one year. A new Labour government was elected at the end of 1999, and one of its first acts was to restore the public monopoly. It saw no necessary or sufficient connection between the issues of paying victims and reducing accidents. It also rejected the view that the ACC operated inefficiently. On the contrary, there was no duplication in the provision of services and administrative costs were very low. However, full funding was thought to be desirable and this was retained in the new legislation that the government introduced shortly afterwards. This legislation the Injury Prevention, Rehabilitation, and Compensation Act 2001 once again left the provisions for coverage largely undisturbed. Entitlements also were not much changed, the significant exception being the reintroduction of lump sum compensation for impaired amenity (but not for pain and suffering). So in core respects the previously existing law continued. The new developments in the 2001 Act were primarily in the field of accident prevention, and to this end it introduced new processes and strategies aimed at reducing the incidence of injury and promoting safety and

9 2011] ACCIDENT COMPENSATION 197 security. However, provision for cover for medical accidents was extended by amendment in 2005, 9 in a way which will be explained below and which has had very significant practical consequences. A further amendment in extended cover to include work-related mental injury. Then in 2010, after the National Party had been returned to power in the 2008 election, the name of the 2001 Act was changed to the Accident Compensation Act 2001, 11 thus returning to the original, and surely appropriate, title. Most recently, the National Government has expressed its commitment to introducing more market discipline within the accident compensation scheme. The existing ACC Accredited Employers Programme (AEP) gives large employers significant discounts on their ACC levies in exchange for taking responsibility for their employees work injury claims. Proposals to extend the scheme include reducing barriers on participation by providing a greater range of risk-sharing arrangements, reducing compliance costs faced by employers by providing more flexibility in meeting financial entry requirements, and offering other risk-sharing arrangements to small employers outside the AEP. 12 The ACC Workplace Safety Management Practices Programme and the Workplace Safety Discount Programme also provide levy discounts for businesses showing sound health and safety practices. Until recently there was no general discount on levies, analogous to an insurance no-claims discount, for businesses showing a good safety record. Historically the work levy has been based on injury rates across industry categories, without any differentiation according to a particular business s safety record. However, in April 2011 ACC introduced a system of experience rating, under which a business s work levy can be modified based on its claims history. 13 So experience rating seeks to reward those businesses with safer workplaces and to encourage a focus on improving workplace safety. 9. Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) Injury Prevention, Rehabilitation, and Compensation Amendment Act Accident Compensation Amendment Act 2010, s Increasing Choice in Workplace Accident Compensation (2011). 13. Experience Rating Making ACC Work Levies Fairer for Individual Businesses (2011)

10 198 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 A further proposed reform will reintroduce private insurance arrangements covering accident compensation liabilities. 14 Private insurers will provide insurance cover in respect of accident compensation entitlements in competition with the ACC and will be subject to prudential regulation. The aim of the proposal is to improve safety, rehabilitation and efficiency in the workplace. COVER The provisions for cover under the accident compensation scheme over the years have become increasingly detailed, and presently they are divided up under twelve specific heads of claim. However, cutting through this prolixity, the various bases for cover fall broadly into four core categories. These are personal injury caused by an accident, 15 personal injury by way of medical treatment, 16 personal injury caused by employment-related disease or infection, 17 and personal injury by way of mental injury suffered as a consequence of physical injury 18 or by the victims of certain specified sexual offences, 19 or which is work-related. 20 The victim in any of these cases can make a claim for compensation to the Accident Compensation Corporation pursuant to a simple administrative process. 21 Personal injury In every case the cover provided under the Act depends on the claimant having suffered personal injury. This is defined as meaning death, or physical injuries, or mental injury in certain defined circumstances, or damage (other than wear or tear) to dentures or prostheses. 22 Personal injury does not include personal injury caused wholly or substantially by gradual process, disease, or infection unless it is work-related, or is caused by treatment, or is 14. Increasing Choice in Workplace Accident Compensation (2011). 15. Accident Compensation Act 2001, s 20(2)(a),(g). 16. Ibid, s 20(2)(b),(c),(d),(f),(h),(i). 17. Ibid, s 20(2)(e),(j). 18. Ibid, s 26(1)(c). 19. Ibid, ss21, 26(1)(d), sched Ibid, ss 21B, 26(1)(da). 21. Ibid, s Ibid, s 26(1)

11 2011] ACCIDENT COMPENSATION 199 consequential on another, covered, personal injury, or is consequential on another treatment injury. 23 Nor does it include a heart attack or stroke unless this constitutes a treatment injury or is work-related. 24 It is clear that the reference to physical injuries in the definition is intended to be all-embracing. The definition specifically states that such injuries include a strain or sprain, but otherwise the concept is not further defined. Seemingly it should be understood as meaning any condition involving harm to the human body, including harm by sickness or disease, that is more than merely trifling or fleeting. 25 In the case of mental injury, this means a clinically significant behavioural, cognitive or psychological dysfunction. 26 So the requirement is similar to the test at common law for the recovery of damages for psychiatric injury. 27 It is apparent that personal injury, and in particular physical injuries, has a very broad meaning. But there may still be certain forms of harm to the person which do not qualify and which may be actionable at common law. And even where some form of personal injury has been suffered, it may have been inflicted in circumstances which are not covered for compensation and, again, it may be potentially actionable. We will be considering some possible examples in the discussion below. Personal injury by an accident Put in somewhat compressed terms, an accident means (a) a specific event, or a series of events, other than a gradual process, that 23. Ibid, s 26(2). 24. Ibid, s 26(3). 25. This suggestion, made in The Law of Torts in New Zealand (fn 1 above) at para , was approved by Stevens J in Falwasser v Attorney-General [2010] NZAR 445 at [90]. It was held in this case that a plaintiff suffered physical injuries from exposure to pepper spray, and that his common law claim against the police accordingly was barred. 26. Accident Compensation Act 2001, s 27. The definition is based upon the American Psychiatric Association s Diagnostic and Statistical Manual of Mental Disorders. 27. See McLoughlin v O Brian [1983] 1 AC 410, 417 (HL); Tame v New South Wales: Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, [17], [192]- [194] (HCA); Odhavji Estate v Woodhouse [2003] 3 SCR 263, [41] (SCC); van Soest v Residual Health Management Unit [2000] 1 NZLR 179, (CA).

12 200 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 involves the application of a force (including gravity) or resistance external to the human body; or (b) the inhalation or oral ingestion of any solid, liquid, gas or foreign object on a specific occasion, not including the inhalation or ingestion of a virus, bacterium, protozoan, or fungus save where this is the result of the criminal act of another person; or (c) a burn, or exposure to radiation or rays on a specific occasion, not including a burn or exposure caused by exposure to the elements; or (d) the absorption of any chemical through the skin within a defined period of time not exceeding 1 month; or (e) any exposure to the elements, or to extremes of temperature or environment, within a defined period of time not exceeding 1 month, that causes certain disability or death. 28 However, accident does not include any of these occurrences where the occurrence amounts to treatment injury, or any ecto-parasitic infection or the contraction of any disease carried by an arthropod as an active vector unless workrelated. 29 Further, the fact that a person has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident. 30 The most common types of accident, such as a car crash or falling over, are covered by paragraph (a). It certainly includes injury caused by intentional conduct, as where one person is struck by another, for this is an accident, as defined, and the state of mind of any person causing the injury is irrelevant. It also encompasses a series of events constituting an accident, although this has to be distinguished from a gradual process. The relevant force refers to a significant force causative of injury, not the concept of force as used in physics. It does not cover a child suffering from foetal alcohol syndrome due to her mother having drunk alcohol during the pregnancy, 31 or a child suffering from cerebral palsy caused by an antenatal force external to the foetus but occurring within the mother, 32 or a person inhaling smoke. 33 Nor is there an accident on the failure of a clip occluding 28. Accident Compensation Act 2001, s 25(1). 29. Ibid, s 25(2). 30. Ibid, s 25(3). 31. Winikerei v ARCIC 27/7/05, Fogarty J, HC Wellington CIV Sam v ACC [2010] NZAR Simm v ACC 20/12/06, Mallon J, HC Wellington CIV

13 2011] ACCIDENT COMPENSATION 201 a patient s fallopian tube. 34 Strains or sprains are included as personal injury, and they occur by accident on the basis that gravity constitutes the requisite external force or resistance. Personal injury by way of medical treatment The second core category is personal injury by way of medical treatment. Originally there was cover for medical misadventure, which concept was not defined in the statute but which was held by the courts to mean medical negligence insufficient or wrong treatment or medical mishap unforeseeable adverse consequences of proper treatment. 35 Parliament then followed this lead, by providing in the 1992 Act that medical misadventure meant personal injury caused by medical error or medical mishap. 36 Medical error was defined as meaning medical negligence, 37 and medical mishap as meaning an adverse consequence of properly administered treatment that was rare and severe. These further requirements were defined in their turn in close detail. 38 In 2005 Parliament made significant changes to the above regime. The need in many cases to show medical negligence arguably was difficult to reconcile with the no-fault basis to the scheme, and the detailed limits on the notion of mishap were seen as arbitrary and lacking in principle. So new provisions based on the concept of 34. Patient A v Health Board X 15/3/05, Baragwanath J, HC Blenheim CIV , [59]. 35. See especially ACC v Auckland Hospital Board [1980] 2 NZLR 748; Green v Matheson [1989] 3 NZLR 564; Childs v Hillock [1994] 2 NZLR Accident Rehabilitation and Compensation Insurance Act 1992, s 5(1). 37. More specifically, the Act stated that medical error meant the failure of a registered health professional to observe a standard of care and skill reasonably to be expected in the circumstances. It was not medical error solely because desired results were not achieved, or subsequent events showed that different decisions might have produced better results, or the failure in question consisted of a delay or failure attributable to the resource allocation decisions of the organisation. 38. An adverse consequence was rare only if the probability was that it would not occur in more than 1 % of cases in which that treatment was given. There was no medical mishap where an adverse consequence was rare in the ordinary course but was not rare for that particular person, and the greater risk was known to the person prior to the treatment. The consequence was severe only if it resulted in the patient dying, or being hospitalised as an inpatient for more than 14 days, or suffering significant restriction or lack of ability lasting more than 28 days in total.

14 202 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 treatment injury were introduced to replace the cover for medical misadventure. Treatment injury means personal injury suffered by a person seeking or receiving treatment from a registered health professional that is caused by treatment 39 and that is not a necessary part or ordinary consequence of the treatment, taking into account all the circumstances including the person s underlying health condition and the clinical knowledge at the time of the treatment. 40 It does not include personal injury that is wholly or substantially caused by a person s underlying health condition, or that is solely attributable to a resource allocation decision, or that is a result of a person unreasonably withholding or delaying consent to treatment. 41 The Act further provides that the fact that treatment did not achieve a desired result does not of itself constitute treatment injury. 42 Treatment is widely defined and includes, inter alia, the giving of treatment, the diagnosis of a condition, a decision on the treatment to be provided (including a decision not to provide treatment, failure or delay in providing treatment, and obtaining or failing to obtain a person s consent to treatment. 43 These provisions make no reference to either mishap or error, yet both concepts remain as critical determinants for cover. First, as regards mishap, there is no cover for personal injury that is a necessary part or ordinary consequence of treatment. Yet treatment very frequently will pose a risk of recognised but unwanted side effects. While the threshold for coverage has shifted, from consequences that were rare to those that are not necessary or 39. At common law, certain modifications to ordinary principles of but for causation accept that proof that a defendant caused a risk of harm or the loss of a chance of avoiding harm exceptionally may provide sufficient proof of cause: see especially McGhee v National Coal Board [1973] 1 WLR 1; Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; Gregg v Scott [2005] 2 AC 176; Sienkiewicz v Greif (UK) Ltd [2011] 2 WLR 523. However, these decisions cannot be applied to claims for accident compensation. In Richardson J s words, The statute focused on outcomes, not on risk of injury or potential for injury. To accept a lesser statutory test of increased risk or to adopt a reversed onus approach would be inconsistent with the statutory language and scheme: Atkinson v ARCIC [2002] 1 NZLR 374 at [24]; and see ACC v Ambros [2008] 1 NZLR Ibid, s 32(1). 41. Ibid, s 32(2). 42. Ibid, s 32(3). 43. Ibid, s 33(1).

15 2011] ACCIDENT COMPENSATION 203 ordinary, the courts still must determine whether there has been some kind of mishap justifying coverage. In this respect the law has reverted from detailed definition back to judicial discretion. Second, as regards error, let us take the requirement that the personal injury should not be wholly or substantially caused by a person s underlying health condition. Where there is a failure to treat and the patient s condition gets worse, or treatment does not alleviate a condition, how do we determine whether the continuing injury is caused by the treatment or failure to treat or by the underlying condition? Seemingly the claimant must establish on the balance of probabilities that treatment, or different treatment, would have improved the patient s condition or prevented it from getting worse, and this, of course, is likely to involve the claimant needing to show that the health professional was negligent in making his or her decisions about treatment. Furthermore, the Act provides that it is not of itself treatment injury because desired results are not achieved. So the scheme is not intended to underwrite a lack of success in medical treatment. But when might there be treatment injury when desired results are not obtained? An obvious answer is when the wrong treatment is given. The task of defining what is and what is not covered for accident compensation in the context of medical treatment is bound to be difficult and probably cannot be resolved in an entirely satisfactory fashion. Medical injury frequently lies near the dividing line between accident and illness. For as long as the accident compensation scheme provides cover for accidents but not for illness (save for occupational disease), it will remain necessary to search for an unexpected accident or event which can separate a medical injury from ordinary treatment of an illness or disease. Personal injury caused by work-related disease, heart attacks and strokes Third, there is personal injury caused by work-related disease, heart attacks and strokes. A person suffers personal injury caused by a work-related gradual process, disease or infection in circumstances where (a) he or she performs an employment task or works in an environment that has a particular property or characteristic, (b) this property or characteristic causes or contributes to the injury, is not found to any material extent in his or her non-employment activities or environment, and may or may not be present throughout the whole

16 204 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 period of employment, and (c) the risk of suffering the injury is significantly greater for persons who perform the employment task than for others or is significantly greater for persons who are employed in that type of environment than for those who are not. 44 Work-related personal injury, broadly, is personal injury suffered by a person while at his or her place of work, or while travelling to or from work in transport provided by the employer, or while travelling between the place of work and another place for the purpose of getting treatment for a work-related personal injury. 45 A work-related gradual process, disease or infection includes, in particular, personal injury by way of the occupational diseases listed in Schedule 2 to the Act, 46 and in these particular cases proof that the cause of the disease is work-related is not required. 47 However, there is no cover where the personal injury is related to non-physical stress, or is any degree of deafness for which workers compensation has been paid. 48 A cardio-vascular or cerebro-vascular episode suffered by a person is covered for compensation if the episode is caused by physical effort or physical strain that is work-related and is abnormal in application or excessive in intensity for that person. 49 Seemingly it needs to be shown that the episode happened at work and that the activity concerned was abnormal or excessive for the particular claimant as compared with the effort to which the claimant was accustomed. Normal exertion leading to a heart attack or stroke, even during employment, does not qualify. Mental injury The final category is mental injury suffered in certain defined circumstances. Personal injury does not include mental injury, 44. Accident Compensation Act 2001, s 30(2). 45. Ibid, s 28(1). 46. Ibid, s 30(3). These include pneumoconiosis caused by sclerogenic mineral dust, silico-tuberculosis, lung cancer or mesothelioma diagnosed as caused by asbestos, and various diseases of a type generally accepted by the medical profession as caused by certain specified industrial substances or their toxic compounds. 47. Ibid, s 30(4). 48. Ibid, s 30(5). 49. Ibid, s 28(3).

17 2011] ACCIDENT COMPENSATION 205 except where it is a consequence of the claimant s physical injury 50 or where it is covered in two particular categories of case. First, s 21 provides cover for mental injury suffered by victims of the criminal offences specified in Schedule 3 to the Act. These are mostly sexual offences, and include sexual violation, incest, certain offences of indecency, infection with disease and certain offences relating to female genital mutilation. However, a victim who suffers mental injury caused by an offence which is not so specified is not covered and can, therefore, sue. For example, a claimant who suffered nervous shock on discovering that her partner was HIV positive was not entitled to cover on account of the fact that the partner had pleaded guilty to criminal nuisance under s 145 Crimes Act 1961 (NZ), because this particular offence was not included in Schedule However, in a more recent decision where the facts were very similar, it was held that a sexual partner who had concealed his HIV status was guilty of sexual violation, and this being a specified offence the claimant was entitled to compensation for her mental trauma. 52 Second, s 21B provides cover for mental injury that is caused by sudden, directly perceived work-related events. 53 The Act provides detailed guidance about the meaning of sudden and direct in this particular context, 54 using tests which approximate to a degree the limited grounds for the recovery of common law damages for mental injury in the UK. 55 RELATIONSHIP WITH THE COMMON LAW From the inception of the accident compensation scheme there has been a bar on suing in New Zealand for damages for personal injuries or death. The bar is presently found in s 317(1) of the As to which see Hornby v ACC (2010) 9 NZELC 93, CLM v ACC [2006] 3 NZLR KSB v ACC [2012] NZCA Accident Compensation Act 2001, s 21B(1). For work related personal injury see fn 45 above. 54. Ibid, s 21B(5)-(7). 55. As to which see Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310 (HL).

18 206 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 Act, 56 which simplifies the original wording in the 1972 and 1982 Acts. It provides: No person may bring proceedings independently of this Act, whether under any rule of law or any enactment, in any court in New Zealand, for damages arising directly or indirectly out of (a). Personal injury covered by this Act; or (b). Personal injury covered by the former Acts. The bar cannot be avoided by failure to make a claim or a purported denial or surrender of rights under any of the Acts or a lack of entitlement to any particular benefit. 57 A similar bar applies in the case of personal injury caused by a work-related gradual process, disease or infection. 58 The scope of the statutory bar was examined by the Court of Appeal in Queenstown Lakes District Council v Palmer. 59 In this case the plaintiff sought damages for the shock and mental injury that he suffered after witnessing the death of his wife in a rafting accident which was caused, he alleged, by the negligence of the defendant. It was argued that this was a claim for damages arising indirectly out of personal injury covered by [the] Act, that is, the death of Mrs Palmer, but Thomas J, delivering the judgment of the court, was satisfied that the common law action was not barred. Section 14(1) of the 1992 Act (the predecessor to s 317(1) of the 2001 Act) did not apply, because the proceedings brought by Mr Palmer did not arise indirectly out of Mrs Palmer s death. The critical words in s 14(1) were personal injury covered by this Act, and the relevant personal injury had to be personal injury for which damages were sought. Yet Mr Palmer was not seeking damages for his wife s death. The relevant injuries for which he was seeking damages were the mental 56. For the earlier bars, see the Accident Compensation Act 1972, s 5(1); Accident Compensation Act 1982, s 27(1); Accident Rehabilitation and Compensation Insurance Act 1992, s 14(1); Accident Insurance Act 1998, s 394(1). 57. Accident Compensation Act 2001, s 317(7). 58. Ibid, s 318(1),(2). Oddly there are no similar anti-avoidance provisions as in s 317(7), but these are implicit in the bar itself and are in fact unnecessary. 59. [1999] 1 NZLR 549.

19 2011] ACCIDENT COMPENSATION 207 injuries which he himself suffered as a result of the alleged breach of a duty of care owed to him by the defendants. Mrs Palmer s death was simply part of the sequence of events which provided the factual basis for his claim. Thomas J was satisfied that the legislative history and the policy behind the legislation, and indeed common sense, supported this view. Persons covered under the Act were denied access to the courts at common law in return for the perceived advantages of the statutory scheme. The legislation reflected this policy from the outset. The purpose of the provision barring common law claims was to prevent persons who suffered personal injury being compensated twice over, once under the statute and then at common law, not to prevent them recovering any compensation at all. So the application of the Act and the corresponding scope for common law proceedings would automatically adjust as and when the scope of the cover provided by the Act was extended or contracted. To the extent that the statutory cover was extended, the right to sue at common law would be removed; to the extent that the cover was withdrawn or contracted, the right to sue at common law would be revived. Any other view would lead to fundamental injustice, whereby a person was deprived both of compensation and of damages. The bar on suing does not extend to any proceedings relating to any damage to property, or any express term of any contract or agreement, or any personal grievance arising out of a contract of employment. 60 However, there can be no award of compensation in such proceedings for personal injury covered by the scheme, 61 nor indeed in any other kinds of proceedings, such as a criminal prosecution Accident Compensation Act 2001, s 317(2). 61. Ibid, s 317(3). 62. So a court making a sentence of reparation under s 32(5) Sentencing Act 2002 must not order the making of reparation in respect of loss or damage for which the court believes a person has entitlements under the 2001 Act. In Davies v Police [2009] 3 NZLR 189 the Supreme Court held that the inquiry should be into whether there was cover for the type of loss for which there were entitlements under the Act, not into the sums actually payable. Accordingly, a criminal court could not make a reparation order to compensate a victim for the difference between her full loss of income and the 80 % loss for which she was compensated under the 2001 Act.

20 208 THOMAS M. COOLEY LAW REVIEW [Vol. 28:2 It may be that these specific exclusions from the bar on suing are not really needed. If a claim is not in respect of personal injury caught by the bar in s 317(1), it should follow that the claim can still be brought irrespective of whether it falls within one of the three specifically identified types of proceedings. Seemingly they have been included in order to make it perfectly clear that the proceedings themselves are not barred insofar as they are concerned with uncovered loss. So, for example, a car accident victim who suffers personal injury can sue for damage to the car. A victim of an unjustifiable dismissal can recover compensation for humiliation, loss of dignity and injury to feelings. 63 The provision concerning any express term of any contract confirms that proceedings for a benefit additional to the statutorily provided benefits founded on, say, an insurance contract providing for additional payments in the event of injury are not barred. In Brittain v Telecom Corporation of New Zealand Ltd 64 Tipping J, discussing a predecessor to this provision in the 1992 Act, drew a key distinction between proceedings to recover a payment due under a contract as a result of the payee suffering personal injury, and proceedings to recover compensation due as a result of a breach of contract causing personal injury. In the case of a contractual payment the amount involved would not be at large. It would be specified in the contract or ascertainable by reference to definitional machinery. But compensation would relate to a case where the amount involved was at large and would depend on assessment, not definition. It was the difference between a payment to which a person was entitled by way of contractual performance and compensation payable as a result of contractual breach. So in the instant case, where the claimants were seeking undefined sums of compensatory damages for occupational overuse syndrome allegedly caused by breach of their employment contracts, the actions were barred. The relationship between compensation under the Act and compensation at common law accordingly is straightforward: to the extent that there is coverage provided by the accident compensation scheme, an action for damages is barred; to the extent that there is no such coverage, any action for damages can proceed. 63. Employment Relations Act 2000, s 123(c)(i). 64. [2002] 2 NZLR 201.

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