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  • Grant McLachlan - Hawke's Bay Today - Column

No fault and no responsibility

We have a no fault system for personal injury and, in the light of the Havelock North water contamination epidemic, has ACC made us gormless?

Almost fifty years since the conception of ACC, are we better without it?

The Accident Compensation Corporation scheme was the recommendation of a 1967 Royal Commission where, in the return for removing the civil action for damages from personal injury, people would be guaranteed cover for 80 percent of their income.

The scheme was good in theory but in practice it has contributed to a gormless and condoning culture where injurers and officials lack accountability.

Removing the right to sue was supposedly to prevent ambulance-chasing lawyers clogging up the court system. The Royal Commission estimated the cost and risk of legal proceedings to be roughly 20 percent of the potential damages awarded - hence the 80 percent cover for loss of earnings.

In reality, lawyers haven’t gone away as ACC’s “guaranteed cover” has become a bureaucratic minefield, often fought by lawyers paid by contingency fees – eating a chunk out of ACC settlements.

To many, ACC is a dodgy slot machine that never pays out. ACC hire the services of “approved assessors” who look for reasons to decline cover rather than provide treatment. There have been cases of patients with a head injury waiting 18 months to see a specialist, only for many indicative physical signs to disappear.

As a result, we effectively have three health systems – the public system, the private system, and a system of parasites paid by ACC to exclude clients from receiving proper treatment.

Victims, however, can sue for punitive or exemplary damages, which effectively cover the delay and shortfall of ACC cover. Often, such awarded damages are pathetic compared to other jurisdictions and are the response to advocates who have failed to punish employers or improve work conditions.

Advocates have failed. The Health and Disability Commissioner, Work Safe, Department of Labour, and Police don’t have the resources, inclination or the incentives to punish dodgy practices.

Is it any surprise that our workplaces are twice as dangerous as Australia’s and four times United Kingdom’s?

A no-fault insurance-based scheme has made our culture gormless. Terms like “systemic failure” appear too often in commissions of inquiry reports.

There is something wrong with our system when pilots given wrong coordinates crash aircraft into mountains, poorly ventilated coal mines explode, unqualified engineers design high-rises, cliff-edge viewing platforms that collapse, and water contamination causes epidemics where no one is held responsible.

But overseas industry groups envy our worker compensation system. Families of tourists who die here at the hands of blasé tourism operators think otherwise.

Our health system is deadlier. In the States (where they keep accurate records), the American Medical Association reported the third leading cause of death – after heart disease and cancer – to be medical negligence. In New Zealand, if you can prove it, ACC only pays out $4,500 for the funeral and $100,000 for the “medical misadventure” causing death.

A doctor can prescribe the wrong medication, kill a patient, fill out the death certificate with the wrong cause of death, and veto the need for an autopsy without repercussions. It has happened. It happened to my mother.

To see how hopeless doctors are at filling in forms, I would recommend everyone to ring ACC to ask for their ACC555 and claim files. It’s no surprise that so many patients are refused cover and given little choice other than to receiving one third of the minimum wage on the sickness benefit.

Because New Zealanders can’t sue pharmaceutical companies, the government has half-heartedly acted on our behalf. When there have been huge settlements overseas (no thanks to our government’s efforts), our government simply pocketed the money and then made sufferers here fight for it.

Instead of behaving like an insurer, ACC calculates premiums/levies based on vehicle classes, petrol consumption, and industry, rather than individual circumstances. There aren’t incentives like no claims bonuses and lower premiums. We don’t have the choice of provider and are left fighting a system that wastes money on advertising campaigns, fighting clients, and investing in political pet projects.

ACC was broke in 2008. We all had to reach into our pockets to prop it up. Now, they are so flush with cash, it’s bigger than the Superannuation Fund, and splurges on Public-Private motorways and Auckland investment property.

We should have the choice of suing the negligent or claiming insurance. Employers, earners, non-earners, sports clubs, and drivers should all have a choice of insurer. Such a minor change will see major improvements in the way our community cares for each other.

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