Accident Compensation Scheme Research Articles

The Importance of Secondary Gain - a Missing Story

There is a wealth of data to tell us that, when it comes to illness, not all is as it seems. Research into hidden agendas of patients [1]drives home the point that a substantial portion of patients (up to 42%) have covert motives for obtaining secondary gains associated with their patient status (e.g., financial support, help or attention from others, stimulant medication, work or study related privileges, or evasion of responsibilities. Less than 10% shared their expectations with the psychiatrist. The Accident Compensation Scheme in New Zealand, , reported a prevalence of symptom exaggeration of 20-50%. In 2017 a disorder struck in Sweden. It struck whose families had failed their last appeal for asylum. The previously unknown ’catatonia’ has many of the characteristics of a culture bound syndrome – giving voice to the voiceless/powerless. Researchers from Ireland studied the motivations of people with factitious disorder. A desire for affection was the most commonly mentioned reason for fabricating illness and as a coping mechanism for threatening life events. The analysis showed that motivation was conscious. Bianchini et al have reported on the Financial Incentive Effect. Perhaps counterintuitively one of the most important points they make is that the presence of a financial incentive is associated with worse outcomes. They found that factors othere than the injury itself control for the probabilities of return to work. How can we determine what is real? [1] Van Egmond, J., Kummeling, I., & Balkom, T. A. (2005). Secondary gain as hidden motive for getting psychiatric treatment. European Psychiatry, 20(5-6), 416-421.DisclosureNo significant relationships.

Social Unemployment Insurance: A case (more or less) in favour

Budget 2021 announced a social unemployment insurance (SUI) system, to be developed in partnership with BusinessNZ and the New Zealand Council of Trade Unions, and modelled on the accident compensation (ACC) scheme. This new policy addresses the needs of workers involuntarily laid off as industries restructure and seek new skills. This article considers concerns raised about the SUI proposal, drawing comparisons with the ACC experience. While SUI would perpetuate market income inequalities and may not do much to prevent poverty, it could also reduce other sources of inconsistency and disadvantage.

Prospective Outcomes of Injury Study 10 Years on (POIS-10): An Observational Cohort Study

Injury is a leading cause of disability and is costly. This prospective cohort study extension aims to improve disability, health, and wellbeing outcomes for injured New Zealanders, including for Māori. We will identify predictors and modifiable risk factors of long-term outcomes (positive and negative), and develop an Injury Early Care Tool (INJECT) to inform the implementation of effective interventions to improve outcomes. In the Prospective Outcomes of Injury Study (POIS), 2856 people participated following an injury (occurring between 2007 and 2009) registered with New Zealand’s no-fault accident compensation scheme (ACC). POIS-10 will invite 2121 people (including 358 Māori) who completed a 24-month POIS interview and agreed to follow-up, anticipating 75% participation (n = 1591). Interviews will collect sociodemographic characteristics, life events, comorbidities, and new injuries since participants’ 24-month interview, as well as key disability, health, and wellbeing outcomes 12 years post-injury. Injury-related data will be collected from ACC and hospitalisation records 12 years post-injury. Regression models for the main outcomes will examine the direct effects of predictor variables after adjustment for a wide range of confounders. POIS-10 is enhanced by our partnership with ACC, and expert advisors and will benefit injured people, including Māori, through increased understanding of mechanisms and interventions to improve long-term post-injury outcomes.

Reflections on the Woodhouse Legacy for the 21st Century

This lecture commemorates the life of one of our most distinguished judges and citizens, Sir Owen Woodhouse. His compassion, generosity of spirit and social conscience were reflected in his work as President of the Court of Appeal, President of the Law Commission and Chairman of the Royal Commission on Compensation for Injury that recommended a no-fault accident compensation scheme and laid the foundations for the Accident Compensation Corporation (ACC) scheme. He made an immense contribution to New Zealand's law and society.

A Retrospective on the Woodhouse Report: The Vision, the Performance and the Future

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the victims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

A Retrospective on the Woodhouse Report: The Vision, the Performance and the Future

The following is a revised version of the second Woodhouse Memorial Lecture given at both the Victoria University of Wellington and the University of Auckland in September 2018. It traces the history and policy iterations of New Zealand's accident compensation scheme that flowed from the 1967 Woodhouse Report (the Report), a Royal Commission report chaired by Sir Owen Woodhouse. It discusses the features of the Report and the determination it showed to get rid of the common law action for damages for personal injury. It analyses the degree to which the Report was not followed in the journey it took through the political decision-making system. There is a critical analysis of the delivery of benefits, the administration of the scheme and its financing. The performance in accident prevention and rehabilitation is briefly covered. The method of settling disputes in the scheme has seen an unwelcome return to legalism. The lecture concludes with a strong plea to remove the anomalies created by the accident compensation scheme between the vicitims of accident who receive earnings related-benefit and those who are dealt with under the Social Security Act 2018 under which they receive flat rate benefits. The lecture concludes with some lessons for policymakers.

Community insurance versus compulsory insurance: competing paradigms of no-fault accident compensation in New Zealand

AbstractThis paper presents a history of New Zealand's accident compensation scheme as a struggle between two competing normative paradigms that justify the core reform of the replacement of civil actions for victims of personal injury with a comprehensive no-fault scheme. Under ‘community insurance’, the scheme represents the community taking moral and practical responsibility for members who are injured in accidents, while for ‘compulsory insurance’ the scheme is a specific form of compulsory accident insurance. Understanding the history of the scheme in this way helps explain both the persistence of the scheme and important changes made to it by different governments.

Parental Reproductive Liberty for Choosing the Sex of Their Offspring: an Analysis of the Positions in Muslim Law and Christianity

On 1 April 1974 New Zealand's no-fault accident compensation scheme commenced. Since then doctors in New Zealand have been protected from civil claims for damages which arise directly or indirectly from medical misadventure. During this period disciplinary complaints against doctors have risen substantially but there is no empirical evidence that New Zealand's no-fault accident compensation scheme has adversely affected the regulation of medical practice in that country.

Consumer Product Failure Causing Personal Injury Under the No-Fault Accident Compensation Scheme in New Zealand—a Let-off for Manufacturers?

This article examines how the no-fault accident compensation system in New Zealand operates to relieve manufacturers from liability to consumers for product failures which cause personal injury or death. The state-run accident compensation scheme pays compensation to persons who suffer “personal injury by accident” and bars claims for compensation from the party at fault. The advantage for consumers is that they are entitled to compensation from the accident compensation scheme as of right and do not need to make claims against manufacturers of products which cause injury or death. The article outlines some limited circumstances when consumers may claim compensation from manufacturers and identifies other avenues for holding manufacturers responsible for injury or death caused by faulty products. The paper makes three recommendations to increase manufacturer responsibility: (1) allow the regulatory body which administers the Accident Compensation system to claim compensation, by way of subrogation, from manufacturers in limited circumstances; (2) require manufacturers to pay an additional “product liability” levy to the accident compensation scheme; and (3) amend the Health and Safety at Work Act 2015 to cover non-workplace accidents exposing manufacturers of unsafe products to Worksafe investigation and possible criminal liability. The article argues that imposing additional responsibility on manufacturers for product failures which cause personal injury or death is justified on the grounds of fairness. Arguments based on corrective fairness and distributive fairness can both be relevant in cases of personal injury caused to consumers by manufacturers.

Promoting Safety Through Law, National and International, and by Other Means

The Woodhouse family, friends of Sir Owen Woodhouse and the law faculties of the Victoria University of Wellington and the University of Auckland decided on the occasion of what would have been Sir Owen Woodhouse's 100th birthday that a fellowship and lectureship should be established in recognition of the great contributions he has made to law and policy in New Zealand and beyond. The fellows and lecturers are not to see themselves as limited to the law and are encouraged to address broader matters challenging people here and abroad. Sir Kenneth Keith gave the inaugural Sir Owen Woodhouse Memorial Lecture in Wellington on 29 August 2017 and in Auckland on 30 August 2017. The address considers in turn the dangers and perils at work, at sea and on the battlefield. It reflects on New Zealand's accident compensation scheme and suggests possible extensions to the scheme.

Patterns and Predictors of Failed and Sustained Return-to-Work in Transport Injury Insurance Claimants.

A historical cohort study was conducted in the state of Victoria, Australia. People insured through the state-based compulsory third party transport accident compensation scheme were included. Inclusion criteria included date of crash between 2003 and 2012 (inclusive), age 15-70years at the time of crash, sustained a non-catastrophic injury and received at least 1 day of income replacement. A matrix was created from an administrative payments dataset that mapped their RTW pattern for each day up to 3 years' post-crash. A gap of 7 days of no payment followed by resumption of a payment was considered a RTW failure and was flagged. These event flags were then entered into a regression analysis to determine the odds of having a failed RTW attempt. 17% of individuals had a RTW fail, with males having 20% lower odds of experiencing RTW failure. Those who were younger, had minor injuries (sprains, strains, contusions, abrasions, non-limb fractures), or were from more advantaged socio-economic group, were less likely to experience a RTW failure. Most likely to experience a RTW failure were individuals with whiplash, dislocations or particularly those admitted to hospital. Understanding the causes and predictors of failed RTW can help insurers, employers and health systems identify at-risk individuals. This can enable earlier and more targeted support and more effective employment outcomes.

Manufacturing a Better System: ACC and International Product Liability

New Zealand's accident compensation scheme replaces the ability to bring proceedings for compensatory damages for personal injury with the provision of no-fault compensation. While the debate around the scheme often focuses on the availability of cover and entitlements to the injured person, the need to have a fair and principled system to fund these benefits is central to the scheme's integrity. This paper examines the legal principles behind the scheme's funding and notes areas for improvement in the current levy system. The largely incompatible principles of community responsibility, and fault and risk are the key rationales used to apportion the scheme's costs. However, when applied to the case of overseas manufacturers whose defective products cause personal injury to New Zealanders, there is a significant inconsistency. Overseas manufacturers make no financial contributions to the scheme while receiving the scheme's protection from liability. To address this, the paper recommends extending the Accident Compensation Corporation's current power to take subrogated proceedings to cover the situation where it is needed the most: in cases of international product liability.

The Triple Lottery

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.

No-fault, no difference: no-fault compensation for medical injury and healthcare ethics and practice

Overuse of medicines and medical interventions, patient safety, and rising costs are among the greatest challenges facing modern health care. Because medical malpractice systems are thought to be a driving factor, it is logical to consider alternative medical regulatory structures.1 New Zealand’s experience with no-fault compensation for medical injury and separate medical professional accountability processes may provide insights. Now that the no-fault system has been fully in place for a decade, it is timely to reflect critically on potential lessons for health systems around the world. The three main functions of a medical regulatory system are to provide compensation for injury, accountability, and deterrence, and mechanisms that enable learning. In 1974 New Zealand introduced a publicly-funded accident compensation scheme with the goals of minimising the incidence and impact of injury. The scheme provides assistance with the cost of treatment and rehabilitation for all personal injuries, regardless of fault, and in exchange bans suing for compensatory damages. Medical injury has always been covered under the scheme. Consequently, in New Zealand there is no culture of suing doctors for damages and doctors pay comparatively low medical indemnity fees of around £790 per annum. Doctors are held to account under separate processes including the Medical Council of New Zealand’s competence and fitness to practise processes, an independent patient complaints system, and a separate disciplinary process. The patient complaints system was introduced in 1994 on recommendation of a 1988 government report that found wanting the prior accountability processes in an environment where patients were unable to sue.2 In …

Should New Zealand Shirk Its Obligations? A Critical Perspective on Private Law Scholarship

This article concerns the role of the private law scholar in New Zealand, and how such scholars use their skills to improve the law. It argues that while an obligations scholar's preference may be to engage with the courts and other academics in their scholarly activities, a focus on statutory reform better suits New Zealand conditions. Scholars should share their talents with policy makers, law reform bodies and legislators, helping to explain the importance of a coherent system of private law, and how this may be achieved. The authors then go a step further by suggesting that, in the New Zealand context, the preferable approach to reform may be one involving policy-based solutions exemplified by the accident compensation scheme, as opposed to approaches based on traditional private law principles such as party autonomy.

The problems and suggestions of possible improvement of the current car insurance in Korea : Focusing on the compensation of personal injury

Korean auto insurance industry has experienced serious difficulties due to market saturation, high loss rate and price regulations by authority. There have been various efforts to overcome the current difficult situation through the improvement and reform of automobile insurance system in Korea. In this context I have a very keen interest in Accident Compensation Act of New Zealand. New Zealand has an unique compensation scheme, so called ‘No-fault scheme’, for the injured people by accident including motor accident. 40 years ago, the New Zealand legislated ‘Accident Compensation Act’ by operated ACC for accomplishment the responsibility of society for the injured. In this paper, I will analysis the current situation and problems of Korean car insurance and examine NZ’s ACC. Thereby, I want to have useful implications for the reform of Korean automobile insurance system. This article will focus on compensating personal injury caused by car accident. Korean car insurance has several problems related in personal injury compensation. There are: Insufficient compensation for the victims, Inadequate compensation for the insureds, Increasing in lawsuits against insurers and Expensive medical fees. There are two ways in approaching the reform of the current Korean compensation scheme for physical injuries. Firstly, maintaining the framework of the tort law compensation system and the liability insurance in order to strengthen the social security through social welfare and social insurance. On the other hand, the compensation for a physical injury issues to be handled only by the social insurance process. The compensation system that acclimatized to the principle of liability with fault may be difficult to change it to the no-fault system straight away in the first place. However, it is important to take a step by step. Looking from the long term perspective, those steps will later shift from the fault based compensation system to the no-fault based compensation system; make worker’s compensation scheme and the accident compensation scheme unified; and finally it will become one entity system like New Zealand where all accident injuries covered under the ACC which are governed by the Accident Compensation Act. New Zealand's universal injury compensation scheme might resolve the problems of overlapped compensations by social insurance and private insurance and of different charges for medical treatments. And also it provides prompt compensations for injured persons and operates efficiently because all the processes take place in the one entity. In these respects this study on the New Zealand's accident compensation scheme will contribute to social cost reduction of the operation of auto insurance system in Korea.

Case Comment – Cumberland v Accident Compensation Corporation

In Cumberland v Accident Compensation Corporation, the Court of Appeal held that where a mother is denied the information that her foetus is disabled, and thus loses the opportunity to terminate the pregnancy, the "continuing pregnancy" can be a personal injury covered by the Accident Compensation scheme. This article examines the judgment and argues the Court of Appeal has extended New Zealand case law on "wrongful births" without explicitly acknowledging this. The author suggests that, by focussing purely on the physical effects on the mother and her lost opportunity to determine the medical treatment given to her, the Court has avoided the value laden approach that has plagued other wrongful birth cases.

New Zealand's Accident Compensation Scheme and Chronic Pain Syndrome

Chronic pain syndrome does not currently constitute a physical injury under New Zealand's Accident Compensation scheme. This article considers the correctness of this exclusion given the Supreme Court's adoption in Allenby v H of an expanded interpretation of the term "physical injury", in deeming pregnancy to be an injury. It concludes that policy factors, particularly the need to uphold the integrity of the legislation enacted by Parliament, demand that the exclusion of chronic pain syndrome is maintained.

Relationship Between Stressfulness of Claiming for Injury Compensation and Long-term Recovery

Each year, millions of persons worldwide seek compensation for transport accident and workplace injuries. Previous research suggests that these claimants have worse long-term health outcomes than persons whose injuries fall outside compensation schemes. However, existing studies have substantial methodological weaknesses and have not identified which aspects of the claiming experience may drive these effects. To determine aspects of claims processes that claimants to transport accident and workers' compensation schemes find stressful and whether such stressful experiences are associated with poorer long-term recovery. Prospective cohort study of a random sample of 1010 patients hospitalized in 3 Australian states for injuries from 2004 through 2006. At 6-year follow-up, we interviewed 332 participants who had claimed compensation from transport accident and workers' compensation schemes ("claimants") to determine which aspects of the claiming experience they found stressful. We used multivariable regression analysis to test for associations between compensation-related stress and health status at 6 years, adjusting for baseline determinants of long-term health status and predisposition to stressful experiences (via propensity scores). Disability, quality of life, anxiety, and depression. Among claimants, 33.9% reported high levels of stress associated with understanding what they needed to do for their claim; 30.4%, with claim delays; 26.9%, with the number of medical assessments; and 26.1%, with the amount of compensation they received. Six years after their injury, claimants who reported high levels of stress had significantly higher levels of disability (+6.94 points, World Health Organization Disability Assessment Schedule sum score), anxiety and depression (+1.89 points and +2.61 points, respectively, Hospital Anxiety and Depression Scale), and lower quality of life (-0.73 points, World Health Organization Quality of Life instrument, overall item), compared with other claimants. Adjusting for claimants' vulnerability to stress attenuated the strength of these associations, but most remained strong and statistically significant. Many claimants experience high levels of stress from engaging with injury compensation schemes, and this experience is positively correlated with poor long-term recovery. Intervening early to boost resilience among those at risk of stressful claims experiences and redesigning compensation processes to reduce their stressfulness may improve recovery and save money.

Plus ça change, plus c’est la même chose

In 2005, cover for treatment injury replaced medical misadventure in New Zealand’s accident compensation scheme. The mischief was to remove the need for a claimant to prove a health practitioner’s or organization’s negligence to establish cover. The aim was to provide greater fairness for claimants, faster claims handling and a higher acceptance rate. A disturbing aspect of the case law interpreting the treatment injury criteria is that notions of negligence have crept back into the interpretation of these criteria and are becoming entrenched. The original purpose of the reform is in danger of miscarrying, unless these misguided interpretations are corrected by superior appellate courts. This is not simply a matter of being faithful to the intention of the reform but is necessary to maximize provider trust and cooperation in the claims process in the interests of claimants. A way to do this is to incorporate the concept of ‘preventability’ as defined in the Swedish, Danish and Finnish patient insurance schemes. It may prove impossible to eradicate fault altogether from treatment injury, but vigilance is required so that negligence is kept to a minimum. Negligence concepts might continue to play a role in the interpretation of the statutory exclusion from cover of personal injury that is an ‘ordinary consequence’ of treatment. Another is in relation to Accident Compensation Corporation’s (ACC’s) mandatory duty to report a risk of harm to the public. Any enthusiasm on behalf of ACC and the courts to ‘bring back negligence’ is ironically absent from the latter aspect of the scheme.