Howard's End: ACC And Miscarriages Of Justice

The Transport & Industrial Relations Select-Committee of Parliament decided last week not to hold an inquiry into ACC and so the most outrageous miscarriage of justice continues unabated. Maree Howard writes.

In relation to an injured New Zealander, ACC has an overwhelming wealth of knowledge and experience.

It has the financial ability to fund sophisticated investigations involving high quality experts and have that material presented to it, guided, orchestrated and propounded by its own in-house lawyers responsible to it alone, and paid for by ACC.

Coupled with that, is ACC's ability to put high-priced lawyers up against unrepresented and physically and mentally injured New Zealanders at both review and appeal in the District Court. It controls and funds the whole process even going so far as to pay for the time of the District Court.

The application of any standards under the rules of natural justice would identify those circumstances as being unequal in negotiating ability and unfair.

This is not a level playing field, it is not fair, and it offends the basic principles of natural justice.

It also raises a serious question.

Since ACC invests huge amounts of levy-payers money in various companies and organisations in New Zealand and overseas, is it fair to ask whether the judges in the District Court who rule on ACC's decisions hold shares or bonds in those same companies in which ACC invests?

I do not recall ever seeing evidence of disclosure by judges of the investments, if any, that they or their families hold.

There are numerous cases throughout the world where judges have been taken to task when it was subsequently discovered that they held shares in companies and ruled on case which might have benefited them financially. The principle that a person or entity with a financial interest in the outcome of a case before it may not exercise any decision-making authority with respect to that case has deep and unequivocal roots.

It is not the result of a case, but the temptation, which provides the taint of unfairness.

ACC conducts internal administrative reviews of its decisions which don't even involve hearing the claimants side. That also offends the basic principles of natural justice.

I am not suggesting that any judge in New Zealand would be anything less than fair and impartial.

But consider that if a judge held shares in a company in which ACC had invested and then that judge ruled declining an injured workers weekly compensation, which might amount to thousands of dollars, that money would then be available to ACC to further invest in a company which the judge may also hold shares. It might, I say might, result in a financial gain for that judge.

Who would know? Justice not only has to be done, but it must be seen to be done. And New Zealand is a small country.

The same principle could apply to a reviewer at the initial stages of hearing an ACC decision before it went to appeal.

Scoop has recently heard commentary that there is some mystery over the quality and consistency of decisions coming from both the review and the appeal process and the body language of the person hearing the case is said to leave much to be desired when claimants are presenting their case. There is an allegation at both review and appeal that ACC and their lawyer gets a much easier time of it than the claimant.

I also have to question why there are no female judges sitting in the ACC jurisdiction of the District Court.

One lawyer has recently agreed with Scoop that the District Court is not following the Practice Note issued by the Chief District Court Judge for tele-conferencing, an exchange of submissions and agreement to a bundle of documents prior to the appeal hearing. It's an ambush on the day - for both parties.

Scoop asked why wasn't there a complaint. The answer was that a lawyer must appear before judges every day and realistically the last thing you want to do is to question or rock the boat. If that is correct, then it is a serious matter for the NZ Law Society to solve. We cannot contine with a culture of bullying or fear in this society - particularly at the judical level.

There are also complaints that reviewers, contracted to Disputes Resolution Services Limited a wholly-owned subsidiary of ACC, are also inconsistent and erratic in decision-making and that most will not allow an exchange of submissions prior to a review hearing meaning that an unrepresented injured person is at a great disadvantage when up against an ACC-funded legal hotshot.

It was constitutional jurist Albert Dicey (1835-1922) who said "..every official, from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to make payment of damages, for acts done in their official character but in excess of their lawful authority. Appointed government officials and politicians, alike, and all subordinates though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person." (Law of the Constitution)

The true aim of the accident compensation scheme was to provide for the injured person and to prevent their becoming a charge upon their families, relatives or friends, or upon the community at large.

That principle has been well and truly lost in New Zealand and the ACC scheme has become all about money and investments while injured people get dumped onto Government welfare benefits by a focus on bias to deny rather than to accept claims. This puts people associated with ACC, like the medical professionals it uses, in an inherent conflict of interest position.

And it has just been revealed to Scoop that ACC was allegedly a shareholder in America's largest disability insurer, UNUMProvident, between January 1994 and February 2000. ACC is said to have held around NZ$ 756, 000 in book value of shares.

UNUMProvident and other US disability insurance companies are currently before the US Federal Courts for defrauding claimants and have already had multi-million damages awarded against them. Insurance Commissioners are also imposing fines of up to $1 million and the Chief Executive of UNUMProvident has been sacked.

Meanwhile, the Transport and Industrial Select-Committee of our Parliament sits on its hands and won't conduct an inquiry into ACC.

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