Sir Geoffrey Palmer calls for bold overhaul of ‘unjust and discriminatory’ ACC

Former Prime Minister the Right Honourable Sir Geoffrey Palmer QC used the 2018 Sir Owen Woodhouse Memorial Lecture at Victoria University of Wellington to call for a bold and visionary overhaul of New Zealand’s accident compensation system.

Sir Geoffrey Palmer

Unjust discriminatory aspects of the system need to be eradicated, Sir Geoffrey told an audience at the University’s Faculty of Law.

And the “unfinished business” of what Sir Owen intended when the royal commission he chaired laid the groundwork for the no-faults system needs finally to be completed, he said.

Sir Geoffrey said there should be a single unified system not only for people incapacitated by accidents but also those incapacitated by sickness or otherwise disabled. A unified system was Sir Owen’s intention when the Woodhouse Report was released in 1967, he said.

Only about half the report’s “bold, almost revolutionary recommendations” went on to be included in the 1972 Act that established the first version of the accident compensation system we have today, said Sir Geoffrey.

His speech outlined “the vision, the performance and the future” of accident compensation, which started operating in 1974 and is administered by the Accident Compensation Corporation (ACC).

“The scheme has certainly improved the plight of accident victims compared with what was available at common law. Many more people can claim and have their hardship relieved. Yet there have been persistent criticisms of ACC in recent years about how the lines are drawn, how medical issues are assessed and many changes in administration.

“In the past few years, the decisions of ACC have become more restrictive, similar to liability insurance not social insurance, and less people oriented. At its inception, the scheme created two classes: those who are injured who are treated more generously than those who are sick or otherwise disabled. The Woodhouse Report made clear the recommended scheme was to be a temporary order of things. Until the discrimination the present scheme creates is removed, social justice will not have been achieved.”

Sir Geoffrey said serious inequalities stem from the preferential treatment enjoyed by accident victims in terms of both income support and rehabilitation.

Someone “laid low by cancer, a heart attack or stroke” is treated much less generously than someone suffering an accidental injury that results in the same incapacity, he said.

“The first group is easily impoverished by the drop in income compared with the person on ACC.”

Sir Geoffrey pointed to a paragraph in the Woodhouse Report that said: “Informal and simple procedure should be the key to all proceedings … Applications should not be made to depend upon any formal type of claim, adversary techniques should not be used, and a drift to legalism avoided.”

But, said Sir Geoffrey: “That aim has clearly not been achieved. Indeed, there have been constant difficulties about how to resolve disputed cases and the District Court was brought in to decide cases some year ago.”

He said: “The lines of demarcation that are drawn in the current legislation are technical, difficult and sometimes unfair. The problems facing claimants are formidable. The obstacles have been deliberately increased over the years. If claimants read the statute, they would have little chance of understanding it. The legislation seems unfit for the social purpose for which it is designed. What has developed is not what the designers envisaged …

“This was a scheme to do away with the need for lawyers when claiming compensation for personal injury. Now the legislation is so intricate that lawyers are often needed.”

Sir Geoffrey said that, 50 years after the Woodhouse Report, “We do not seem to be willing to grasp the nettle and design what a rational and humane system of income support looks like. Fairness demands a policy response and one that is properly worked through. That is what the Woodhouse legacy is saying to us, if only we would listen.

“The Woodhouse vision was admirable, the performance of the scheme that was adopted improved matters substantially for accident victims, but there is unfinished business. The future remains uncertain. We need now a fresh infusion of Woodhouse boldness and vision.”

Sir Owen Woodhouse died in 2014, aged 97.

The annual lecture in his name commemorates the life of one of New Zealand’s most distinguished judges and citizens, whose roles included President of the Court of Appeal and President of the Law Commission.

Sir Geoffrey, a friend of Sir Owen’s, is a Distinguished Fellow in Victoria University of Wellington’s Faculty of Law.

‘Advancing better government’ is one of the University’s distinctive strengths.

Sir Geoffrey will be reprising the lecture at the University of Auckland General Library on Wednesday 26 September.