|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Otago Law Theses and Dissertations |
Last Updated: 21 September 2023
OVER AND ABOVE:
COMPENSATION FOR LOSS OF EARNINGS UNDER THE NEW ZEALAND CRIMINAL JUSTICE REPARATIONS SCHEME WHERE ACC WEEKLY COMPENSATION ENTITLEMENTS ARE
PRESENT
Faculty of Law University of Otago
CRAIG TATLEY
A dissertation submitted in partial fulfillment of the degree of Bachelor of Laws (with Honours) at the University of Otago
October 2019
Table of Contents
Acknowledgements
I would like to acknowledge my supervisor, Dr Simon Connell, for the mentoring, the time, and the effort he has devoted to me over the past 10 months. There is no doubt that without this help, I would not have been able to research or write on this topic. Dr Connell has a brilliant ability to bring clarity to any piece of writing, and of that I am very grateful.
Thank you.
I would also like to thank my family and friends. Without the unending support you have given me, there is no chance I would have persevered and finished this dissertation.
I Introduction
A Research Question
How should courts determine the quantum of reparation for lost earnings consequential on physical harm that an offender is ordered to pay a victim where the physical harm is covered under the accident compensation scheme?
II Status Quo
This chapter will set out the background to this research question, including the reparations scheme in the Sentencing Act 2002, and the Accident Compensation Scheme1 as it is applied today.
A Legislative Background
B Sentencing Act 2002
The sentence of reparation is a sentence whereby an offender must pay money to their victim to compensate them for losses they have caused through, or by means of, their offending. 2 Section 32 of the Sentencing Act sets out what losses may be compensated by the sentence of reparation. Where a person is injured in circumstances for which an offender is convicted of a criminal offence, section 32(1)(c) of the Sentencing Act provides that the victim may receive reparation3 for:
(c) loss consequential on physical or emotional harm, or damage to, property.4
It is reparation under s 32(1)(c)5 that we are most concerned with, as these reparations can be used to compensate a victim of crime for loss of earnings. Reparation for physical harm itself cannot be awarded, as direct physical harm itself is compensated by the Accident Compensation Scheme (ACC Scheme). This is discussed from Subchapter D. The consequential losses that may be covered by an award of reparation can include lost earnings.6
Section 32(5) provides that:
32 (5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.7
The application of the sentence of reparation will be most relevant to this research question where the offender has the financial capability to pay reparations, and where the victim has an incapacity resulting in a long-term loss of earnings.
1 Accident Compensation Act 2001.
2 Sentencing Act 2002, s 32.
3 Section 12(1).
4 Section 32(1).
5 Section 32(1)(c).
6 Discussed at Chapter III C 1 below.
7 Sentencing Act 2002.
C The Sentence of Reparation
If an individual pleads guilty to, or is found guilty of, a criminal offence, they will be subject to a sentencing process.8 Reparation is one sentence that may be imposed on an offender, as well as, for example, fines and imprisonment.9
A sentence of reparation is a sentence of its own right. A sentence of reparation may be imposed in the absence of any other sentence.10
(a) Reparation prior to the Sentencing Act 2002
The sentence of reparation was first introduced in s 22 of the Criminal Justice Act 1985.11 Initially, reparation was only available to compensate damage to property,12 and was not available to compensate for any losses consequential on physical harm, such as compensation for loss of earnings.13 Under section 11, a court was required to impose reparation so long as the court did not consider it inappropriate to do so.14
Though not part of the sentence of reparation itself, under s 28, a court could order that up to 50 per cent of a fine be paid to the victim, to compensate for physical harm.15 This was only possible where the victim’s physical harm was the result of unprovoked violence.16 The Act specifically provided that payment to the victim would not affect their rights to compensation under the ACC Scheme, and ability to recover civil damages above the amount of the award.17
8 Sentencing Act 2002.
9 Section 12, Section 13, Section 16.
10 Section 12(2).
11 Criminal Justice Act 1985, s 22.
12 Section 22(1).
13 Section 22(5).
14 Section 11.
15 Section 28.
16 Section 28(3)(a).
17 Section 28(4).
(b) Sentencing Act 2002:A referendum held at the 1999 General Election showed public desire for reform of the sentencing system, with a greater value placed on the needs of victims.18 Parliament listened to these desires, and the Sentencing Act 2002 gave compensation for victims of crime a strong priority.19 In particular, “providing for the interests of victims of crime” was made a purpose of sentencing,20 as was providing for reparation.21 The presumption in favour of reparation was strengthened, requiring Courts to impose reparation so long as it did not impose “undue hardship” on the offender,22 and where the Court did not award reparation, the Court was required to give reasons.23 Where an offender only has the means to pay a fine, or reparation, but not both, a court is required to impose a sentence of reparation rather than a fine.24
Under s 32(1), Courts can award reparation to compensate for loss or damage to property,25 emotional harm,26 or “loss or damage consequential on any emotional or physical harm or loss of, or damage to, property”.27
The Sentencing and Parole Reform Bill, the Bill which became the Sentencing Act 2002, initially allowed for reparation to be awarded in respect of physical injury.28 However, this was amended to avoid interference with the ACC Scheme.29 The ability to recover reparations for loss consequential on physical harm was added.30
Additionally, s 32(5) was inserted, which prevents a court from ordering reparation:31 “in respect of any consequential loss or damage described in subsection (1)(c) for which compensation has been, or is to be, paid under the Accident Compensation
Act 2001.”.32
18 Simon Connell “What is the Place of Corrective Justice in Criminal Justice?” (2011) 19 Waikato L Rev 134 at 137; Phillip Gendall, Janet Hoek and Angela Willis “Respondent Understanding of the 1999 Referendum Question on a Reform of the New Zealand Justice System” (2002) 37(2) Australian Journal of Political Science 303 at 311; Julian Roberts “Sentencing Reform in New Zealand: An Analysis of the
Sentencing Act 2002” (2003) 36(3) Australian and New Zealand Journal of Criminology 249 at 251
19 Connell above n 18, at 137; Sentencing Act 2002 s 3(d); Sentencing and Parole Reform Bill 2001 148-
1 at 2.
20 Sentencing Act 2002 s 7(1)(c).
21 Section 7(1)(d).
22 Section 12(1).
23 Section 12(3).
24 Section 14(2).
25 Section 32(1)(a).
26 Section 32(1)(b).
27 Section 32(1)(c).
28 Sentencing and Parole Reform Bill 2001 (148-1) at 11, cl 29(1)(a).
29 Sentencing and Parole Reform Bill 2002 (148-2) at 17, cl 29(1).
30 Clause 29(1)(c).
31 At 17, cl 29(2B).
32 Sentencing Act 2002, s 32(5).
(c) Reparations for offences under the Health and Safety at Work Act 2015The Health and Safety at Work Act 2015 (HSWA) creates duties33 that certain legal or natural persons conducting a business or undertaking, (“PCBU”)34 must perform.35 For example, the Primary Duty of Care,36 requires a PCBU to “ensure, so far as is reasonably practicable, the health and safety”37 of those carrying out work for that PCBU.38 Failure to comply with this, and other duties is an offence.39 These offences rise in seriousness on a scale from non-compliance with a duty,40 to “reckless conduct in respect of (a) duty”.41
As part of the process for sentencing offenders convicted of offences under the Health and Safety at Work Act, the decision of Full Court of the High Court in Stumpmaster v WorkSafe New Zealand provides that the reparation payable to a victim is to be assessed first, before the appropriate level of any fine is set.42 The Court found that where the defendant’s ability to pay a fine and reparations together was at issue, that the level of the fine should be lowered, rather than the award of reparation.43
33 Health and Safety at Work Act 2015, ss 36-46.
34 Sections 16, 17.
35 Sections 30, 31.
36 Section 36.
37 Section 36(1).
38 Sections 36(1)(a) - 36(1)(b).
39 Sections 47-49.
40 Sections 49.
41 Sections 47.
42 Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881 at [35].
43 At [56].
D Accident Compensation Act 2001
The ACC Scheme provides cover, and potentially entitlements, to victims of personal injury caused by accident.44 This chapter will set out the history and functioning of the ACC Scheme.
E Brief History of ACC
(a) Compensation for Injury prior to ACCPrior to the development of the ACC Scheme, victims of injury had resort to various remedies to rectify their loss, access to which depended on the circumstances of their injury.45
Compensation for victims of injury could be accessed through civil proceedings in the tort of negligence,46 the Workers’ Compensation scheme,47 and the Criminal Injuries Compensation scheme.48 Social welfare payments were also available for those unable to meet basic needs.49
By the late 1960’s, these remedies were showing serious deficiencies as effective methods of compensating loss from injury.50 The “Royal Commission to Inquire into and Report Upon Worker’s Compensation” was formed to assess what could be done to improve the existing state of affairs.51 The Commission produced a report known as the “Woodhouse Report”, after the Commission’s Chair, Sir Arthur Owen Woodhouse.52
(b) The Woodhouse Report
The Woodhouse Report roundly criticised the existing schemes.53 In particular, the existing schemes were criticised for the inconsistent way the burden of injury was
44 Personal injury by accident is not the only grounds for cover under the Accident Compensation Act
2001; see further at section 8, and sections 20-24. They are the grounds most relevant to criminal offending. For the range of available entitlements, see further at sections 73-113.
45 Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand Compensation for Personal Injury in New Zealand; Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) at 19, hereafter “Woodhouse Report”; Simon Connell “Justice for victims of injury: The influence of New Zealand’s Accident Compensation Scheme on the Civil and Criminal Law” (2012) 25(2) NZULR 181 at 186.
46 Woodhouse Report, above n 45 at 47.
47 Woodhouse Report, above n 45 at 79-80, 91-92.
48 B J Cameron “The New Zealand Criminal Compensation Act, 1963” (1965) 16 UTLJ 177 at 177-179.
49 Woodhouse Report, above n 45 at 98-99.
50 Connell, above n 45, at 185; Woodhouse Report, above n 45 at 19, 47, 79-80, 91-92, 98-99.
51 Woodhouse Report, above n 45 at 11-13, Though convened to examine compensation for injuries suffered through employment, the Royal Commission expanded the scope of its inquiry to include all injuries, suffered “whether at work, or during the remaining hours of the day” at 30-31.
52 At 3, 17.
53 Woodhouse Report, above n 45 at 42-106; Connell, above n 45 at 187-186; Stephen Todd (ed) and others Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 2.2.01.
placed on society, with only a privileged few able to access any remedy resulting in compensation which covered actual losses from their injuries.54 This included describing the process of receiving compensation through actions in negligence as “a form of lottery”.55
The Report recommended the existing piecemeal compensation schemes were replaced with a comprehensive scheme covering all victims of injury, regardless of fault.56 This included recommending providing compensation for lost earnings at a level that covered actual losses and rehabilitation for injured victims.57 The Report also recommended that all existing compensation schemes be abolished, so that the funding used to run those could be pooled into running the new scheme.58 If the new scheme provided a sufficiently high level of compensation, the existing remedies, including civil proceedings in the tort of negligence, would be unnecessary.59
(c) The ACC Scheme from inception through today
The Woodhouse Report led to the passing of the Accident Compensation Act 1972.60 Cover under the Act was provided for “personal injury by accident”, a term which was not exhaustively defined in the Act.61 Entitlements available under the Act included weekly compensation of up to 80 per cent of pre-injury earnings, treatment and rehabilitation costs, and compensation for mental injury.62 In line with recommendations in the Woodhouse Report, the Act barred proceedings arising from personal injury where cover was present,63 effectively ending the application of the tort of negligence as it applied to personal injury in New Zealand, except in proceedings for exemplary damages.64 Proceedings for exemplary damages are not barred,65 as exemplary damages have a punitive, not compensatory purpose.66 In practice, the definition of “personal injury by accident” was often determined in a very generous way by the courts,67 which led to concerns about the expense of the scheme.68
54 Woodhouse Report, above n 45 at 19.
55 Woodhouse Report, above n 45 at 19.
56 Woodhouse Report , above n 45 at 26.
57 Woodhouse Report, above n 45 at 39-41.
58 Woodhouse Report, above n 45 at 39, 129-130.
59 Woodhouse Report, above n 45 at 108.
60 Connell, above n 45 at 187.
61 Todd, above n 53 at 2.2.02.
62 Connell, above n 45 at 187.
63 Accident Compensation Act 1972, s 5.
64 Todd, above n 53 at 2.3.03.
65 At 2.3.03; See further at Accident Compensation Act s 319(1).
66 At 2.5.02.
67 At 2.2.05.
68 At 2.2.05.
In 1992, concerns about the expense of the scheme led to the passing of the Accident Compensation Rehabilitation and Insurance Act 1992, including changes which to a large extent involved reducing cover for victims of accident.69 Included was an exhaustive, and more restrictive definition of “accident”.70
The term “Insurance” in the title of the Act indicated the move of the scheme to one based on concepts of insurance, where one makes payments to an insurer to transfer their risk, from the original scheme conceived on ideals of community responsibility, as envisaged by the Royal Commission.71
In 2001, however, the Act was reformed into the Injury Prevention, Rehabilitation and Compensation Act 2001,72 since 2010 called the Accident Compensation Act 2001.73 This new Act is perhaps an attempt to strike a balance between the originally expansive scheme and the reduced cover offered by the 1992 scheme.74 In particular, the purpose of the 2001 Act emphasises that compensation is provided on the basis of the social contract, and does not feature the word “Insurance”.75 Though cover is more expansive, in form and structure, the wording of the current Act is closer to the 1992 scheme than it is to the original 1974 scheme.76
69 At 2.2.05.
70 At 2.2.05.
71 Connell, above n 45 at 187-188.
72 At 188.
73 Accident Compensation Amendment Act 2010, s 5(1)(a).
74 Connell, above n 45 at 188.
75 Connell, above n 45 at 188; Accident Compensation Act s 3(d).
76 Connell, above n 45 at 188.
F Functioning of the ACC Scheme
(a) The process to receive entitlements to Weekly CompensationIf the victim has suffered a personal injury77 by accident,78 they will receive cover.79 If an injury is covered, the victim may receive entitlements,80 which can include weekly compensation for loss of income due to incapacity.81 Personal injuries by accident include injuries caused by conduct which may become the subject of a HSWA prosecution.
If an individual has cover under the ACC Scheme, they are prevented from bringing personal legal proceedings for damages which arise directly, or indirectly from a covered personal injury.82 The bar on proceedings applies even where an individual with cover is not eligible to receive any entitlements.83 An award of reparation is not a proceeding for damages, as it is the result of a criminal prosecution.84
ACC weekly compensation will only cover up to 80 per cent of the victim’s pre-injury earnings85, subject to a cap on weekly payments.86 ACC weekly compensation payments are increased annually to account for increases in inflation.87 The level of these payments are calculated based on the victim’s earnings in the year prior to their injury. This means that individuals receiving ACC weekly compensation will have a shortfall in their take home “earnings” of 20 per cent compared to their pre-injury earnings, as calculated under the Accident Compensation Act, whilst receiving ACC weekly compensation.
(b) Justifying the level of Weekly Compensation entitlements
The justification for setting the level of weekly compensation at 80 per cent of the injured’s pre-injury earnings comes from the desire to balance two competing factors: the need for compensation for losses at a level that reflects actual losses, and the need
77 Accident Compensation Act ss 26, 28, 29.
78 Section 25.
79 Section 20; See further at n 45; Personal injury by accident is not the only ground for cover; It is possible for example to receive cover through personal injury by work-related gradual process or disease. See further at section 28(4). Injury in these circumstances could also amount to an offence under the Health and Safety at Work Act 2015. The other grounds of cover are less relevant to this research question, as we are interested in a victim who already has cover under the ACC Scheme.
80 Section 67.
81 Section 100.
82 Section 317(1); However, as discussed above at II E (c), this bar does not include proceedings for exemplary damages; See further at section 319(1).
83 Section 317(7)(c).
84 Davies v Police [2007] NZCA 484, [2008] 2 NZLR 645 at [10].
85 Accident Compensation Act, Schedule One, cl 32(3).
86 Schedule One, cl 46.
87 Section 115; Injury Prevention, Rehabilitation and Compensation (Indexation) Regulations 2002, reg 6(1)
to incentivise rehabilitation and keep the costs of the scheme at a fair level for society.88 The Royal Commission considered that compensation at a level that covered the actual losses of injured victims was necessary as the financial burdens of life do not immediately dissipate with injury.89 Compensation premised on meeting basic needs, such as provided by the social welfare scheme, is therefore inadequate. On the other hand, society bears the burden of compensation out of fairness alone, rather than fault, and this coupled with a need to incentivise rehabilitation justifies setting compensation at 80 per cent.90
Although the Royal Commission did not write about the scheme in terms of a social contract, the New Zealand Courts have linked the idea of the ACC Scheme as a social contract to the 80 per cent figure: the people of New Zealand choose to give up the right to pursue full compensation from wrongdoers who cause injury,91 in exchange for fair, but not full, compensation without having to establish fault.92
88 Woodhouse Report, above n 45 at 91, 115.
89 Woodhouse Report, above n 45 at 39-41.
90 At 40.
91 Accident Compensation Act s 317(1).
92 Venning J states that “Importantly a central plank in the social contract implemented through the legislation is compensation for loss which is fair rather than full” in Oceana Gold v WorkSafe New Zealand [2019] NZHC 365 at [48]. See further Davies v New Zealand Police [2009] NZSC 47, [2009] 3 NZLR 189 at [18]- [19].
III Status Quo Ante
This chapter will set out the relevant provisions of the Sentencing Act prior to 2014, which may help us understand why the current legislation is worded in the way it is, and will also show that current legislation does not cure the ambiguity which made the application of s 32(5)93 problematic prior to 2014. This chapter will also examine the decision of the New Zealand Supreme Court in Davies.94
A Sentencing Act 2002, s 32(5), Prior to 2014
Prior to 2014, section 32(5) was worded as follows:
32 (5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which the court believes that a person has entitlements under the Injury Prevention, Compensation, and Rehabilitation Act 2001.
1 The ambiguity in s 32(5) prior to 2014
In the circumstances most relevant to the research question, with a victim who has ACC entitlements to weekly compensation, and an offender who has the financial capacity to pay reparations, the wording of s 32(5) is ambiguous. The court must not order reparation in respect of any loss “for which the court believes that a person has entitlements”95 under the ACC Scheme. The interpretation of s 32(5), and to what extent it allowed reparations to be ordered where a victim had ACC weekly compensation entitlements was the central issue in Davies,96 which I now consider.
B Davies v New Zealand Police [2009] NZSC 47
Davies was driving a vehicle with an insecurely attached mattress that flew off and injured a cyclist. The cyclist received ACC weekly compensation for their lost earnings. Davies was convicted of careless driving causing injury.97 Prosecutors sought to recover the 80 per cent of their pre-injury earnings unpaid to them by ACC. 98 At the District Court,99 High Court,100 and Court of Appeal,101 they were successful, as a “top up” award to the victim’s ACC weekly compensation, of $11,555 was awarded and successively upheld. The Supreme Court overturned this award of reparation.102
93 Sentencing Act 2002.
94 Davies v New Zealand Police [2009] NZSC 47, [2009] 3 NZLR 189. 95 Sentencing Act, s 32(5), prior to the Sentencing Amendment Act 2014. 96 Davies, above n 94.
97 Land Transport Act 1998, ss 8, 38.
98 “Judges cannot order ACC top-up payments, court rules” The New Zealand Herald (online ed, Auckland, 25 May 2009), Davies, above n 94 at [1].
99 Police v Davies (District Court, Christchurch, CRN 05009025688, 26 September 2006, Judge M J Green).
100 Davies v Police (2007) 8 NZELC 98,691.
101 Davies v Police [2007] NZCA 484, [2008] 2 NZLR 645.
102 Davies, above n 94 at [37].
(a) High CourtIn the High Court, Panckhurst J considered that there were two possible interpretations of s 32(5),103 one that considers the class of (or “generic”) entitlement the victim would receive, and one that considers the actual value (or “actual provision”) of entitlement the victim would receive.104 Although considering that both interpretations were reasonable, Panckhurst J settled on the “actual provision” interpretation. He was influenced by the presence of provisions in the Sentencing Act allowing the Court to seek a report into the likely extent of the victim’s entitlements, which suggested courts could examine a victim’s level of entitlement, and emphasis in the Sentencing Act on awarding reparations. These factors motivated Panckhurst J to seek a “more generous approach to the availability of reparation”.105
(b) Court of Appeal
The Court of Appeal upheld Panckhurst J’s decision and reasoning and added their own comments. They considered that if the ACC only paid 80 per cent of pre-injury earnings to a victim of injury, the 20 per cent that remained unpaid was not an entitlement, and was not subject to the restriction in s 32(5).106 The Court also considered the legislative history of s 32(5) and the Sentencing Act: amendments had been made to the Sentencing and Parole Reform Bill107 to bar reparation in respect of physical harm, yet the Select Committee did not do the same in respect of the equivalent clause to s 32(5). This influenced the Court to find that s 32(5) only prevented reparations in respect of loss compensated by the ACC.108 The Court also noted that a purpose of sentencing was “to provide reparation for harm done by the offending”,109 and that they would be unable to do so if reparation was barred in these circumstances.110
(c) Supreme Court
At the Supreme Court, I consider the issue became a question of how much influence the principles of the ACC Scheme should have on the process of awarding reparations to a victim of crime: The ACC Scheme values the integrity of the social contract,111 yet the Sentencing Act prioritises providing for the interests of victims of crime.112
103 Sentencing Act 2002.
104 Davies, above n 94 at [20].
105 At [20].
106 At [21].
107 Sentencing and Parole Reform Bill 2001 (148-1), Sentencing and Parole Reform Bill 2002 (148-2).
108 Davies, above n 94 at [21].
109 Sentencing Act 2002 s 7(1)(d).
110 Davies, above n 94 at [21].
111 Accident Compensation Act, s 3.
112 Sentencing Act, s 3(d), s 7(1)(c), s 7(1)(d), s 8(1)(f), s 12(1).
(i) Majority OpinionA majority of the Court overturned the reparations award in respect of the $11,555 “top up” for loss of earnings.113 McGrath J dissented, and would have allowed the award to stand.114
(ii) No good reason for distinctions among victims of injury
The majority declined to allow top ups to reparation because to do so would interfere with the integrity of the social contract basis of the ACC Scheme. If victims of crime were able to seek a top up to their ACC weekly compensation, they would be in a unique position among those receiving cover for injuries under the ACC Scheme: they would be able to recover compensation from those who caused their injuries.115 The Court considered there was no good reason to draw this distinction between victims of crime, and other victims of injury.116 Justice Tipping stated that:
It would go against the whole philosophy and purpose of the accident compensation scheme to allow those suffering injury as a result of an offence to have the potential to gain greater compensation than those suffering the same injury when no offence is involved or no one is prosecuted.117
Preventing top ups would also be consistent with the goal of the ACC Scheme to encourage rehabilitation.118
(iii) Unsuitability of inquiring into loss of earnings at reparations
The majority also considered that the interpretation of s 32(5),119 and the Sentencing Act more broadly, did not allow inquiries into what shortfall in earnings the victim was suffering as a result of receiving the ACC weekly compensation entitlement.120 The majority considered that the term “entitlements” in s 32(5) referred to the class, or type of entitlements, rather than a specific dollar value of compensation.121 Inquiry into whether an individual has entitlements can be done without inquiring as to the value of entitlements: An individual either has entitlements, or they do not.122 They noted that a court only needed to have “belief” in the existence of entitlements, which indicated against a detailed inquiry into the level of entitlement.123 This was supported by the
113 Davies, above n 94 at [37].
114 At [82].
115 At [28].
116 At [28].
117 At [48].
118 At [30].
119 Sentencing Act 2002.
120 Davies, above n 94 at [35].
121 At [22].
122 At [22].
123 At [24].
view that calculating this shortfall could be a complicated and tedious process unsuitable for carrying out during the summary sentencing process.124
Under s 33(1)(c), the court was able to order a report into the “extent to which the person who suffered the loss... is likely to be covered by entitlements..”.125 The majority considered the term “likely to be covered” suggested a broader examination of whether a victim had cover at all, rather than a precision analysis of the level of cover.126
The Court also considered s 32(3),127 which requires the court to take account of other means a victim may use to recover their losses, was no barrier to this interpretation: Though a victim in receipt of ACC Cover would have no ability to bring legal proceedings to cover any shortfall between actual loss and the entitlement the Corporation paid128, the Court considered that s 32(3)129 was concerned with the “right” for a victim to make a claim through an alternative avenue of compensation, rather than the outcome that a specific compensatory approach would produce.130 This was reinforced by s 32(4), which stated that the fact a right to make a claim had expired, or had not been exercised was not relevant to the application of s 32(3).131 The majority considered what mattered was whether a head of claim existed, not the value able to be recovered under that head of claim.132 In this case, the relevant head of claim was “loss or damage consequential on any....physical harm”.133
(iv) Minority Opinion
McGrath J, in the minority, agreed with the findings of the High Court and Court of Appeal: The definition of “entitlement” only extended to the specific dollar value of compensation the ACC would pay victim. Compensation unpaid by ACC was not an entitlement, and not barred from recovery by s 32(5).134 McGrath J was influenced by the purposes of the Sentencing Act, which places an emphasis on providing for the “interests of victims of crime”.135
McGrath J acknowledged that this interpretation created tensions with the policies underpinning the ACC Scheme, in particular the policy that compensation should be
124 At [35]-[36].
125 Sentencing Act, s 33(1)(c).
126 Davies, above n 94 at [12], [24].
127 Sentencing Act 2002.
128 Accident Compensation Act s 317(1).
129 Sentencing Act 2002.
130 Davies, above n 94 at [23].
131 Sentencing Act, s 32(4).
132 Davies, above n 94 at [23].
133 Davies, above n 94 at [23]; Sentencing Act, s 32(1)(c).
134 Davies, above n 94 at [56], [64].
135 Davies, above n 94 at [74]-[76], Sentencing Act s (3)(d).
limited as an incentive to rehabilitation and a return to work. However, he considered that the inconsistencies with the ACC Scheme were not significant enough to suggest that the interests of victims of crime should be set aside.136
136 Davies, above n 94 at [81].
C Legislative Response to Davies
This chapter sets out the legislative response to Davies, in amending s 32(5),137 what little material is available to assess the intentions of legislators, and why this response has been inadequate in clarifying the application of s 32(5).138
1 Victims of Crime Reform Bill
On the 28th of January 2010, the Justice Minister announced:
Up until May 2009, courts were including consequential injury costs not covered by ACC in orders of reparation. ACC provides compensation for loss of income at a rate of 80 per cent of a claimant’s pre-injury weekly earnings. The courts were including the 20 per cent of earnings not compensated by ACC in orders of reparation, where appropriate. The amendment to section 32(5) of the Sentencing Act will ensure the courts can resume including consequential injury costs not covered by ACC in orders of reparation.139
The explanatory note to the Victims of Crime Reform Bill 2011 stated that one of the policy objectives of the amendment was to “strengthen the existing general provisions in legislation for victims of crime”.140 The Bill was to amend the Sentencing Act 2002, the Parole Act 2002 and the Victims’ Rights Act 2002.141
The purpose of the relevant amendment to the Sentencing Act 2002 was to clarify that court reparation orders can include costs consequential on injury that are not covered by entitlements under the Accident Compensation Act 2001.142
The explanatory note to the Bill refers to a regulatory impact statement,143 which is presumably Ministry of Justice Regulatory Impact Statement: Enhancing Victims’ Rights Review (4 July 2011). That regulatory impact statement does not refer to the issue discussed in this dissertation.144
The clause by clause analysis of the Bill stated that the bill:
...amends section 32 to clarify that the court may not order reparation for consequential loss or damage if compensation has been, or is to be, paid under the Accident Compensation Act 2001. However, a court would be able to impose a sentence of reparation for consequential loss or damage to meet any statutory
137 Sentencing Act 2002.
138 Sentencing Act 2002.
139 New Zealand Government “Reparation and ACC entitlements” (press release, 28 January 2010).
140 Victims of Crime Reform Bill 2011 (319-1), at 1.
141 At 2.
142 At 5.
143 At 5.
144 Ministry of Justice Regulatory Impact Statement: Enhancing Victims’ Rights Review (4 July 2011); This only discusses amendments to the Victims’ Rights Act 2002.
shortfall in compensation. The effect of this amendment is to overturn the Supreme Court decision in [Davies], which ruled that reparation orders cannot be made in respect of any consequential loss or damage where the victim has an entitlement under the Accident Compensation Act 2001, even if the amount payable under that Act does not meet the full extent of the loss.145
The term “statutory shortfall” was not clarified.
(a) Wording of the Amendment to s 32(5)
The specific wording of the amendment, as passed:
“(5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.”146
(b) Lack of thought given legislators to the Amendment
Hansard for the First Reading debates shows that little thought was given to the issue of compensation for victims of crime, except that Charles Chauvel MP discussed the system of Victim Compensation existing in the Australian State of Victoria, which he said placed the victim at the centre of proceedings where compensation was concerned.147
Other speeches by Members discussed the merits of giving victims of crime greater roles in the criminal justice system. There was no discussion of issues caused by the decision in Davies148, or of s 32(5).149
The Justice and Electoral Committee did not amend s 32(5).150 Debate at the second reading, does not substantively cover s 32(5), except where the Minister of Justice explained that the effect of the amendment would be “to enable victims to be compensated for losses not covered by ACC”.151 In response, the Labour Spokesperson for Justice spoke of greater access to reparations not being enough; that victims required support and advocacy through the criminal justice process, however he did not address issues surrounding ACC Weekly compensation and the interaction with reparations.
145 Victims of Crime Reform Bill 2011 (319-1) at 14.
146 Sentencing Act 2002 s 32(5).
147 (4 October 2011) 676 NZPD 21681.
148 Davies, above n 94.
149 Sentencing Act 2002.
150 Victims of Crime Reform Bill 2011 (319-2) at 5.
151 (5 March 2014) 696 NZPD 16392 .
There was no further discussion of the s 32(5) at any further stage of the legislative process.152
D Effect of the Amendment to s 32(5)
As Simon Connell notes,153 this amendment on its own does not clarify the situation: the phrase “loss or damage described in subsection (1)(c)...for which compensation has been, or is to be, paid”154 can still reasonably be given two distinct meanings.
(a) Two distinct interpretations are still possible
Does “loss” refer to the actual loss? In this case, ACC will only pay 80 per cent of that loss, so the remaining 20 per cent is recoverable through reparation. If “loss” refers to the type of loss, then a victim in receipt of weekly compensation for loss of earnings has “compensation” and can recover no more.155
We know that the second interpretation (Compensation refers to the class or type of loss) is untenable under the new legislation, because the explanatory note to the Bill156 states that the effect of the amendment is to overturn Davies, which adopted that second interpretation.157
Parliamentary drafters could have more clearly stated the ability to recover compensation in terms of the first interpretation. An example of how s 32(5) could have been worded more clearly follows:
(5) Despite subsections (1) and (3), with respect to reparation for consequential losses for which a person has been, or is to be, paid under the Accident Compensation Act 2001, a court may only order the making of reparation in respect of the extent of the loss for which the person has not been, or will not be, paid under the Accident Compensation Act 2001.
This would have made it clear that the Court could not award reparation in respect of the actual losses for which ACC compensation has covered; explicitly allowing for reparations to made in respect of loss the ACC does not cover.
The legislation offers no guidance on precisely how a court is to go about calculating the consequential losses that a court can award under s 32(5).158 As a result, decisions on the quantum of reparations have employed a variety of methodologies. What follows
152 (8 April 2014) 697 NZPD 16951, (16 April 2014) 698 NZPD 17350, (27 May 2014) 699 NZPD
18369.
153 Simon Connell “Overturning the Social Contract?” [2014] NZLJ 314 at 315.
154 Sentencing Act, s 32(5).
155 Connell, above n 153 at 315.
156 Victims of Crime Reform Bill 2011 (319-1) at 14.
157 Discussed at Chapter III B above.
158 Sentencing Act 2002.
is a survey of selected reported cases relating to Health and Safety at Work Act offences committed after s 32(5) was amended.
IV Application of s 32(5) Post Amendment
This chapter will set out a selection of the reported cases that followed the amendment of s 32(5),159 showing how Courts have struggled to apply the provision and determine the quantum of reparation to be awarded under s 32(1)(c).160 In the cases set out here, reparations to top up ACC weekly compensation were ordered under s 32(1)(c).
A Variations in Application of s 32(5)
In Transport Waimate Limited,161 Judge Maze set the level of consequential loss on the basis of submissions made by Transport Waimate, at $25,000.162 It is not clear from the judgement how this figure was calculated.
In Gordon Developments Limited163 Judge Fields held that reparation for the shortfall in earnings should be capped at $10,000, because liability could not be for an indefinite period of time, even if that shortfall was ongoing.
In Corboy Earthmovers Limited164 Judge Harland quoted a paragraph from Adams on Criminal Law.165 This stated that whilst reparation for loss of income going forward is in keeping with the ethos of the reparations scheme, liability could not be for income loss into the indefinite future because of the contingencies associated with future income calculations. Adams recommends limiting liability to “...the period during which the offender can realistically be held liable to make reparation payments.”.166
Judge Harland noted that while actuarial calculations are normally used to calculate future sums where a number of variables are in contention, he considered that too many
159 Police v Freightlines Ltd [2016] NZDC 9452 discusses what happens where an offence was committed
whilst the old version of s 32(5) was in force, and where sentencing takes place after the new s 32(5) is in force: Section 6 of the Sentencing Act states that where legislation has been altered, between the offending and sentencing, the lesser penalty is to apply and no disadvantage is to befall the offender. Judge Gilbert concluded that no top up could be awarded in favour of the victim. This decision is less relevant to the research question, as any decision post-Davies, but prior to the Sentencing Amendment Act 2014 will include no top up for loss of earnings, as the effect of Davies is to bar this.
160 Sentencing Act 2002.
161 WorkSafe New Zealand v Transport Waimate Ltd [2016] NZDC 9468.
162 At [10].
163 WorkSafe New Zealand v Gordon Developments Ltd [2016] NZDC 5535 at [26].
164 WorkSafe New Zealand v Corboy Earthmovers Ltd [2016] NZDC 21982.
165 Corboy Earthmovers, above n 164, at [61], citing Simon France (ed) Adams on Criminal Law – Sentencing (online loose-leaf ed, Thomson Reuters) at SA32.06A (It is unclear which edition Judge Harland cited, so I have cited the online loose-leaf edition, where SA32.06A has the same wording as quoted by Judge Harland at time of submission of this dissertation, 4 October 2019).
166 France, above n 165 at SA32.06A.
variables were involved, especially if the victim had planned to continue working after the age of 65, so settled on a “global” figure, of $20,000 reparation.167
In Hamilton City Council,168 Judge Clark cited the Transport Waimate169 decision, and the same paragraph of Adams as in Corboy Earthmovers,170 to justify setting the period of time for which loss of earnings would be compensated at 5 years.171 Judge Clark only awarded reparation for consequential loss to the children of the deceased victim.172 Judge Clark declined to order any other reparation for consequential loss, on the basis that the Hamilton City Council made substantial payments to the family, that ACC childcare payments provided an effective top up for the family’s earnings, and that any significant losses would occur outside the five year time frame set for compensating the loss.173
In Pitango Pty Ltd,174 Judge Winter, in calculating the victim’s reparations under s 32(1)(c), considered that the shortfall in earnings was between the 80 per cent level of pre-injury earnings that ACC pays as weekly compensation, and the “victim’s full earnings”.175 However, the Judge awarded reparations on the basis that the defendant company agreed to meet the shortfall in the victim’s earnings for six months.176 Reparations also included a top up for the period between the accident, and the date of sentencing.177
In Delta Utility Services,178 WorkSafe submitted that the reparation award should include $14,600 to cover the 80 per cent unpaid by ACC from the Date of Injury up to the Date of Trial. WorkSafe also asked for an “ongoing” award of $218.98 per week to cover the shortfall, due to uncertainties regarding the length of time that the injuries would last.179 However, Judge Cook declined to make an ongoing award of reparations. He considered the victim’s own conduct180 was partially causative of the injury, and that the victim had been terminated from his employment with Delta Utility Services.181
167 Corboy Earthmovers, above n 164, at [62]-[65].
168 WorkSafe New Zealand v Hamilton City Council [2016] NZDC 18590.
169 At [21]; Notably, Judge McGuire in WorkSafe New Zealand v Wai Shing Limited [2018] NZDC 10333 considers it is not possible to determine how reparation was calculated in Transport Waimate, as Judge Maze did not provide details of the calculation, at [62].
170 France, above n 165, at SA32.06A.
171 Hamilton City Council, above n 168, at [22].
172 At [25].
173 At [24].
174 WorkSafe New Zealand v Pitango Pty Ltd [2016] NZDC 8537.
175 At [35].
176 Unstated, but presumably from the date of sentencing.
177 Pitango, above n 174 at [34]-[37].
178 WorkSafe New Zealand v Delta Utility Services [2016] NZDC 9452.
179 At [38]-[39].
180 In breaching his employer’s health and safety policy; at [40]-[43].
181 At [58]-[62].
taking these factors into account when setting a “conservative” award of reparations.182 Reparations were awarded for the shortfall between accident and the trial, but not for the ongoing future shortfall.183
In Agricentre South Limited,184 Hamilton Flooring Ltd,185 Luke Martin Roofing Ltd186 and Oropi Quarries Ltd,187 the parties agreed on the value of compensation to be awarded as reparation and there is no discussion as to how this was calculated.
Wai Shing Limited,188 and Ask Metro Fire189 provide the clearest consideration of the issue so far until Oceana Gold.190
In Wai Shing, both WorkSafe and the offender submitted detailed actuarial evidence concerning the victim’s lifelong loss of earnings.191 The submissions for WorkSafe included lifetime loss of earnings calculated using the victim’s actual rate of earnings at the time of injury, and using the “ACC formula”.192 Submissions for the offender calculated the victim’s lifetime loss of earnings using the “ACC methodology”.193
Judge McGuire briefly set out the advantages the ACC Scheme has over the common law litigation for damages, and the history, to that time, of s 32(5).194 He considered that the victim’s loss of earnings was a type of loss the Sentencing Act intended to address,195 and that no time limit could be placed on the length of time of compensation, as the offender’s actions caused a young victim to lose his livelihood.196 He also considered the tortious approach to damages, which he noted to be an imperfect calculation against the speculative nature of the calculations involved.197
He also considered that a discount on the final sum of reparation was necessary, as he considered that the victim would derive a benefit from the compensation provided by the ACC Scheme, which the victim would able to enjoy without having undergone the
182 At [58]-[62].
183 At [61]-[62].
184 WorkSafe New Zealand v Agricentre South Limited [2018] NZDC 7756. 185 WorkSafe New Zealand v Hamilton Flooring Ltd [2016] NZDC 15489. 186 WorkSafe New Zealand v Luke Martin Roofing Ltd [2018] NZDC 11547. 187 WorkSafe New Zealand v Oropi Quarries Ltd [2016] NZDC 10755.
188 WorkSafe New Zealand v Wai Shing Limited [2017] NZDC 10333.
189 WorkSafe New Zealand v Ask Metro Fire [2017] NZDC 13314.
190 Oceana Gold v WorkSafe New Zealand [2019] NZHC 365; Discussed at Chapter V below.
191 Wai Shing, above n 188 at [22]-[34] and [42]-[46].
192 At [32], [34].
193 At [43].
194 At [47]-[62]; Sentencing Act 2002.
195 At [78]-[80].
196 At [80], [83].
197 At [84], [86].
stress and expense of litigation themselves.198 For this, he reduced the award by half.199 He also concluded for reasons of “pragmatism and predictability”, a risk-free interest rate should be adopted to determine the discount rate on the lump sum of the victim’s life long loss of earnings not covered by the ACC.200
(a) Process of calculation of reparation top up award
Judge McGuire then sets out the process of determining the award, being the amount of earnings the victim would lose out on, not paid by ACC.201 The formula he adopts is more clearly set out by Judge Maude, in Ask Metro Fire:202
(a) Calculating the victim's earnings based on his actual accident date earnings increased annually by the labour cost index.
(b) Discounting the above amount by using a risk-free discount rate. As I read the judgment the Judge assumed that it was prudent to adopt the views of what a low- risk investor would adopt.
(c) Discounting the final figure arrived at by 50 percent to take account of the certainty advantage associated with receipt of funds on a regular basis from ACC and avoidance of the financial and emotional stress of litigation.
At step (a), Judge McGuire noted this figure is not to include any allowance for promotion,203 and also deducted the value of employer Kiwisaver contributions, as self employed victims would not have the same benefit.204
In Ask Metro Fire, at step (c), Judge Maude discounted the final figure by only 15 per cent, considering a discount of 50 per cent to be too great.205 In all other respects, Judge Maude followed Judge McGuire’s methodology in Wai Shing.206
All these decisions show that Courts have struggled to find a consistent method in determining the quantum of the top up reparations under s 32(1)(c)207 and s 32(5).208 Whilst Wai Shing and Ask Metro Fire bring clearer method, there were still disagreements, such as the quantum of discount for the avoidance of the stress of litigation, and if such discount is justified at all.
198 At [88]-[90].
199 At [90].
200 At [93], [100].
201 At [100].
202 Ask Metro Fire, above n 189 at [21].
203 Wai Shing, above n 188 at [97].
204 At [98].
205 Ask Metro Fire, above n 189 at [27]-[32].
206 At [21]-[33].
207 Sentencing Act 2002.
208 Sentencing Act 2002.
V Oceana Gold v WorkSafe New Zealand
Oceana Gold209 is the first High Court case since the Sentencing Amendment Act 2014 was passed, where the reparation payable to a victim, or the family of a victim210 is at issue. The central issue is: How should the quantum of reparation for consequential loss be determined where that victim has entitlements to ACC weekly compensation? This chapter will set out Venning J’s decision in Oceana Gold.
A Background
Oceana Gold is a combined case where two individual prosecutions both have the same legal issue: The victims in both Oceana Gold and Cropp Logging suffered injuries (In Oceana Gold, the victim died) that rendered them permanently incapable of earning an income, and reliant on ACC weekly compensation for their remaining forecast working lives.211
Venning J briefly considered whether reparations for loss consequential on physical harm were payable to the family of the deceased victim. The Court found that the Sentencing Act allows reparations to be awarded to the family of a deceased victim, the family under certain circumstances falling within the definition of victim within s 4 of the Sentencing Act.212
B What method of calculation should be applied?
Venning J identified two competing approaches to the calculation of lost earnings consequential on physical harm, for the purposes of reparation:213 The “statutory shortfall” and “open-ended” approaches.
The statutory shortfall approach considers the victim’s potential future earnings as determined by the ACC Scheme (based on pre-injury earnings as calculated under the Accident Compensation Act), and the shortfall compensable by reparation is difference between that figure, and value of ACC weekly compensation payable to the victim.214
The alternative method was described as the “Open-ended approach”.215 This approach aims to capture the victim’s actual loss of earnings, and is calculated using actuarial
209 Oceana Gold, above n 190.
210 Sentencing Act 2002, s 32(1)(c).
211 Oceana Gold, above n 190, at [6]-[11].
212 At [13]-[39].
213 At [41].
214 At [41].
215 At [42].
means.216 The reparation award is calculated by deducting the value of the actual ACC weekly compensation payable to the victim from the actuarially calculated figure.217
Venning J stated the issue:
How is the reparation for loss of earnings reparation to be calculated? Is it to be on a basis consistent with the principles of the Accident Compensation legislation and the social contract upon which that legislation is based, or is it to operate as a true exception to the Accident Compensation legislation and the social contract?218
Venning J then discussed the case history on the process of computing the quantum of reparation for loss of income consequential on physical harm.219
Venning J then went on to consider statements from the Supreme Court in Davies v Police220 regarding the status of reparation. He considered comments by the Court in Davies favoured taking a restrained approach to reparations, which justified implementing the statutory shortfall approach.221 He noted the Court in Davies considered that reparation was intended to be a “speedy and inexpensive”222 approach of compensation for victims of crime, and that the court should consider other remedies available to a victim of crime.223 He noted that Davies held that the ACC Scheme is designed to provide fair, and not full compensation to injured,224 and that this could justify limiting reparations available to top up ACC weekly compensation.225
He also considered the opinions of Elias CJ, and Tipping J in Davies, who found it illogical that under s 317 of the Accident Compensation Act,226 victims of crime would be barred from pursuing a civil claim for damages against the offender who harmed them, but yet could receive compensation through reparations for the same damages they could not sue for.227
216 At [42].
217 At [43].
218 At [40].
219 At [44]-[45]; Venning J considered that WorkSafe New Zealand v Transport Waimate Ltd [2016] NZDC 9468, and WorkSafe New Zealand v Gordon Developments Ltd [2016] NZDC 5535 did not consider the issue in any detail. Her considered that WorkSafe New Zealand v Corboy Earthmovers Ltd [2016] NZDC 21982, WorkSafe New Zealand v Hamilton City Council [2016] NZDC 18590 and WorkSafe New Zealand v South Port New Zealand [2017] NZDC 8050 resolved the issue on a “pragmatic” basis. He noted that WorkSafe New Zealand v Wai Shing Limited [2017] NZDC 10333 considered the issue with some detail.
220 Davies, above n 94.
221 Oceana Gold, above n 190 at [45].
222 At [46], Davies, above n 94 at [10]-[11].
223 At [46], Davies, above n 94 at [10]-[11].
224 Oceana Gold, above n 190 at [48].
225 At [47].
226 Accident Compensation Act 2001, s 317.
227 Oceana Gold above n 190, at [49]-[50].
Whilst Venning J noted that the effect of the Sentencing Amendment Act 2014 was to overturn Davies, he considered that the Accident Compensation legislation was still relevant, and provided “useful context” to the determination of the quantum of reparation payments where ACC entitlements are being paid, in the context of the social contract.228
Venning J noted that the majority of the Supreme Court had concerns about determining what ACC compensation would be payable at a summary sentencing hearing,229 and that even where Courts are equipped with actuarially prepared figures, they may use a “broad-brush” approach to avoid “over-compensating”. 230
D Ancillary issues
Venning J found that a victim’s own contributory conduct to their injuries should not reduce the level of fine levied against an offender.231 He considered this applied to setting reparations too.232 To allow an employer to reduce their liability for fines or reparations because an employee’s perhaps unwise conduct would undermine the primary duty of care of health and safety.233
E Outcome
Venning J found that though some have considered the social contract to be an illusory concept,234 the social contract should be given some consideration, because of its express presence in the purpose section of Accident Compensation Act: The scheme is intended to “reinforce the social contract”.235 He also considered that had Parliament intended to allow reparations to sit outside the ACC Scheme, and the social contract, they would have clearly stated so in the Sentencing Amendment Act.236
Venning J reached the decision that the approach of reparation to be awarded for loss of earnings consequential on physical harm was that of statutory shortfall approach.237 He reached this decision on the basis of best fit with the social contract conception of the ACC Scheme, the fact that it would make reparation hearings a simpler and less
228 At [52].
229 At [55].
230 At [56].
231 At [59]-[61], Citing Department of Labour v Eziform Roofing Products [2013] NZHC 1526;
Department of Labour v Hanham & Philp Contractors [2008] NZHC 2076; (2008) 6 NZELR 79 (HC).
232 At [62].
233 At [63].
234 At [65], Citing Simon Connell. Though uncited presumably Venning J was referring to Simon Connell’s article “Overturning the Social Contract?” [2014] NZLJ 314.
235 Accident Compensation Act, s 3.
236 Oceana Gold, above n 190 at [66].
237 At [68].
uncertain exercise for all parties involved, and because it could avoid litigating the basis of the actuarial reports required of the open-ended approach. The actual reparation to be awarded was to be the difference between the income they would have received had they continued working, and the value of the entitlement to ACC weekly compensation, both figures calculated under Schedule One of the Accident Compensation Act.238
F The Substantive Appeal
Venning J then considered the appeal in Oceana Gold.239 At the District Court, Judge Ingram considered that the victim’s loss of earnings was, $700,000.240 Judge Ingram then halved that figure, on the basis that the mine in which the deceased worked was due to close in five years time, there was limited underground mining work available in New Zealand and the Judge’s own assessment of the local Waihi economy.241
At the High Court, WorkSafe did not seek reparations for loss of income, considering that payments already made to the deceased’s family, and life insurance policies taken out by Oceana Gold, provided sufficient compensation.242
Venning J considered that Judge Ingram had adopted the open-ended approach. He found under the statutory shortfall approach, the victim’s loss of earnings was
$121,275.36.243 Given this, Venning J set the District Court reparation order aside, but made an order that Oceana Gold could not seek repayment of the reparation already paid.244
In Cropp Logging, at the District Court, Judge Ingram set a combined award for reparation of $80,000, not identifying the component of this which was reparation for loss of earnings, or emotional harm.245 Venning J found that the victim’s loss of earnings on a statutory shortfall basis was $6337.15.246 This was awarded along with a
$50,000 award for emotional harm.247
238 At [68].
239 At [70]-[78].
240 WorkSafe New Zealand v Oceana Gold (New Zealand) Ltd [2018] NZDC 5274 at [34] [Oceana Gold (District Court)].
241 Oceana Gold (District Court), above, n 240 at [36]-[37].
242 Oceana Gold, above n 190 at [85].
243 At [86].
244 At [89].
245 At [93]; WorkSafe New Zealand v Cropp Logging Limited [2018] NZDC 20232 at [16].
246 Oceana Gold, above n 190 at [99].
247 At [100].
VI Decisions applying Oceana Gold and the Statutory Shortfall
Since the decision in Oceana Gold has been released, two decisions applying the statutory shortfall approach in District Court have been reported - WorkSafe New Zealand v Crafar Couch Construction (Picton) Ltd,248 and WorkSafe New Zealand v Supermac Group.249 Supermac is a straight-forward application of the “statutory shortfall” approach. However, Crafar involves applying the statutory shortfall approach to fatal entitlements. I will set out, and critique, these decisions.
A WorkSafe New Zealand v Supermac
WorkSafe New Zealand v Supermac is an example of a straightforward application of the statutory shortfall approach. WorkSafe submitted a loss of future earnings calculation to the Court, which was prepared on the statutory shortfall basis.250 This included:
an after – tax risk free rate of return, makes no allowance for promotional increases or change of hours and is for future loss of earnings to age 65.251
Counsel for the defence questioned whether the victim’s entitlement to lump sum compensation should be considered relevant to calculating the top up; however this argument was not “pressed”,252 and Judge Mabey considered the point should be argued another day.253
1 Discounting or reducing the top up award
Judge Mabey also considered whether a discount or reduction of the top award was necessary due to the victim receiving the benefit of entitlements under the ACC Scheme.254 After noting that in Wai Shing and Ask Metro Fire the level of discount was set at fifty per cent, and fifteen per cent respectively, he declined to make such a reduction considering that:
The ability to claim at common law for personal injury was removed when the Accident Compensation Scheme was introduced. That scheme has been described by the Courts as a social contract with the citizens of this country. It is difficult to rationalise why reparation should be discounted for the benefit of not having to go to litigation to recover compensation when that ability no longer exists. It is equally difficult to rationalise why reparation should be discounted because a given victim is receiving statutory benefits which are a right under the social contract.255
248 WorkSafe New Zealand v Crafar Couch Construction (Picton) Ltd [2019] NZDC 8209.
249 WorkSafe New Zealand v Supermac Group Resources Limited [2019] NZDC 15023.
250 Supermac, above n 249 at [43].
251 At [43].
252 At [45]-[46].
253 At [47].
254 At [48]-[53].
255 At [52].
Judge Mabey also noted that the statutory shortfall approach as set out by Venning J made no account for any discount to be taken off the top up award.256
B WorkSafe New Zealand v Crafar Couch Construction
Judge Zhorab acknowledged that Oceana Gold allows the court to make top up awards for the difference between ACC weekly compensation paid at 80 per cent of pre-injury earnings, and pre-injury earnings as calculated under Schedule One of the Accident Compensation Act.257
However, WorkSafe New Zealand requested Judge Zhorab to award a top up of
$59,354.66, being the difference between the amount of compensation that the deceased’s partner would have received, at 60 per cent of the 80 per cent possible weekly compensation entitlement of the deceased, for five years,258 and the 80 per cent entitlement of the deceased had they survived their injuries and received weekly compensation.259
1 ACC Weekly entitlements in Fatal Cases
Fatal weekly compensation entitlements for spouses or partners of deceased victims are the combined result of two policy decisions. The first is that victims of injury should receive 80 per cent of their pre-injury earnings as calculated under Schedule One of the Accident Compensation Act 2001.260 The second is that the spouses or partners of deceased victims of injury should receive at most261 60 per cent of this 80 per cent total possible weekly compensation figure for up to five years,262 or 48 per cent (60% * 80%= 48%) of the victim’s pre-injury earnings.
(a) Applying the Statutory Shortfall to fatal claims
The ethos behind the decision in Oceana Gold can be read as a combination of two policy decisions: Strict adherence to the social contract underpinning the ACC Scheme; and reading this into process of determining the quantum of reparations at sentencing. This results in the statutory shortfall approach. The top up under the statutory shortfall approach is between the victim’s pre-injury earnings as calculated under the ACC
256 At [53].
257 Crafar Couch, above n 248 at [12].
258 At [14]; Accident Compensation Act, Schedule One, cl 66(5)(a).
259 At [15].
260 Accident Compensation Act, Schedule One, cls 32-46.
261 Under the Accident Compensation Act, Schedule One, cl 70, children of the deceased victim may receive up to 20 per cent of the deceased’s weekly compensation entitlement. Under cl 74, the total payable to the family of the deceased must not exceed the deceased victim’s weekly compensation entitlement. This means the spouse or partner may receive less than 60 per cent of the deceased victim’s weekly compensation entitlement, if that the total compensation payable under cl 66, and 70 would be greater than the deceased victim’s weekly compensation entitlement. Under cl 74(2) ACC may reduce the compensation payable to the family on a pro-rated basis.
262 Accident Compensation Act, Schedule One, cl 66(2).
Scheme in Schedule One of the Act,263 and the actual Weekly Compensation figure awarded to the victim, at 80 per cent of the former figure,264 or (100% - 80% = 20%).
If we apply this “statutory shortfall” rationale to fatal entitlements and weekly compensation, it is possible that victims of crime may receive up to 100 per cent of their pre-injury earnings as calculated under the ACC Scheme. Then, spouses or partners of deceased victims are entitled to 60 per cent of this figure. This results in the top up being the difference in Weekly Compensation actually paid to the spouse or partner, at
48 per cent of the victim’s pre-injury earnings, and the maximum entitlement Parliament consider the spouses or partners of victims of crime should receive, 60 per cent of the victim’s pre-injury earnings. The top up should be (60% - 48% = 12%).
(b) The result in Crafar Couch Construction
What WorkSafe New Zealand appeared to ask the Court to award is the difference between what the spouse or partner receives, at 48 per cent of pre-injury earnings, and 80 per cent of the deceased victim’s pre-injury earnings, which makes the top up (80%
- 48% = 32%).265 Presumably this figure ($59,354.66) is 5 years of Weekly Compensation top up totaled and discounted, though this is unclear from judgement as there is no discussion of what comprises this figure, and the Judge accepted WorkSafe’s figure without further discussion.266
It is possible that the Judge was distracted by a frivolous, and ultimately unsuccessful argument made by the defendant about the jurisdiction of the Court to award reparations for loss consequential on physical harm, to the family of the victim,267 as there is little discussion on the basis of what makes up the reparations payment ordered under s 32(1)(c).
263 Schedule One, cls 32-46.
264 Schedule One, cl 32(3).
265 Crafar Couch, above n 248 at [15].
266 At [15]-[16], [29]-[31].
267 At [17]-[29].
VII Analysis of the Statutory Shortfall, and Open-Ended Approaches
This chapter will break down the statutory shortfall and open-ended approaches and examine in detail how they function. The process of calculation in this chapter draws on information received from an Official Information Act Request made to WorkSafe New Zealand. To protect the privacy of the victims in these cases I have chosen not to release this information; and have anonymized detail where possible. Any non- anonymized detail given is taken from the reported cases and is cited accordingly. The layout of both methods include elements of speculation, as the cases and Official Information Requests do not give exact details of the calculation process.
A Statutory Shortfall Approach
The focus of the statutory shortfall approach is on the ACC weekly compensation entitlements of the victim, and methodology ACC use to calculate pre-injury earnings.
1 Process of calculation
(a) Step OneThe first step is to determine the victim’s weekly earnings under Schedule One of the Accident Compensation Act.268 This varies depending on whether the victim drew income as an employee, self-employee, or shareholder-employee.269
As an example, if the victim took earnings as an employee, their pre-injury earnings would be calculated under cl 34.270 Under cl 34, for the first four weeks after the incapacity begins, the victim’s average weekly earnings are calculated by taking the victim’s total earnings over the four weeks immediately prior to the incapacity, divided by the number of full, or part weeks in which the victim earned them.271
For any subsequent period, the victim’s average weekly earnings are calculated by taking the victim’s earnings in the 52 weeks immediately prior to the incapacity, divided by the number of full or part weeks in which the victim earned them.272
(b) Step Two
The second step is to project the victim’s weekly earnings as calculated above, forward over the expected duration of the victim’s incapacity. However, if the incapacity is lifelong, this will only continue until the victim reaches the age of New Zealand
268 Accident Compensation Act 2001, Schedule One, cl s32-45.
269 Schedule One, cls 34-40.
270 Schedule One, cl 34.
271 Schedule One, cl 34(1).
272 Schedule One, cl 34(2).
Superannuation eligibility.273 The weekly earnings figure will only increase at the rate of increase of the Labour Cost Index.274
(c) Step Three
Thirdly, the value of earnings over the duration of the injury are then totaled.
(d) Step Four
Fourthly, this total weekly earnings figure must then be discounted, at a rate reflecting the fact that the victim will need to invest this sum at a risk-free investment rate, as they will rely on this sum to live off. If investment or discount rates are forecast to change, it is possible multiple discount rates, for different periods may need to be used.
(e) Step Five
Finally, the value of ACC weekly compensation to be paid to the victim over the same period of time is calculated and totaled using the same discount rate, and Labour Cost Index rates for the same periods, and is deducted from the victim’s projected earnings as calculated above, resulting in the final figure awarded to the victim as reparation.
B Open-Ended Approach
The open-ended approach awards the top up based on a personalised prediction of what the injured person would have earned had they not been injured. The focus shifts from the ACC entitlements of the victim, to the victim’s anticipated lifetime earnings.
The open-ended approach requires calculations based on factors such as: will this individual get a pay rise; what type of industry do they work in, what is their expected working life.
(a) Process of calculation
(a) Step One
The first step is to set the assumptions upon which actuarial calculations will be made. These assumptions relate to factors such as the victim’s working lifetime, chances of promotion within the industry they were employed pre-injury, chances of early death before the end of their working lifetime, reduction in working hours as they near
273 Schedule One, cl 52.
274 The Labour Cost Index measures movements in the cost of labour for a fixed volume and quality of work. Statistics New Zealand remove any changes that are due to promotion. Statistics New Zealand “Labour Market Statistics: March 2019 quarter” (1 May 2019) Statistics New Zealand <https://www.stats.govt.nz/information-releases/labour-market-statistics-march-2019-quarter>
; See this press release where ACC details the increase in Weekly Compensation rates from 1 July 2019: Accident Compensation Corporation “New client payment rates and interest rates from 1 July” (press release, 20 June 2019) . ACC use increases in the Labour Cost Rate to index weekly compensation under section 115 of the Accident Compensation Act, and the Injury Prevention, Rehabilitation and Compensation (Indexation) Regulations 2002, reg 6(1).
retirement, the expected duration of the incapacity, the rate of inflation (Consumer Price Index), and the risk-free interest rates (Pricewaterhouse Coopers, the actuaries, considered the victim would need to invest in a “conservative asset class” as the victim would rely on this top up to supplement income.) forecast over the expected duration of the incapacity. This is based on statistical evidence published by Statistics New Zealand,275 and the New Zealand Treasury.276
(b) Step Two
The second step is to value the victim’s future earnings, including Kiwisaver employer contributions, making allowances for the assumptions as noted above. In Wai Shing, Ask Metro Fire, and Oceana Gold, PwC used a “probabilistic cash flow model” detail of which are not given.277 It appears that this involves growing the victim’s actual pre- injury earnings rate, by a multiplier which reflects the assumptions set in the first step. It is enough to say that earnings should be valued according to best actuarial practice.
(c) Step Three
Then the victim’s ACC weekly compensation entitlements are valued, allowing for early death as above, and ACC weekly compensation increases at the Labour Cost Index rate. These calculations are also performed using the “probabilistic cashflow model”.
(d) Step Four
These ACC weekly compensation entitlements, and any sums paid by the defendant, are then deducted from the victim’s future earnings as calculated above, to arrive at the victim’s true loss requiring rectification through topping up.
(e) Step Five
Once this figure has been determined, Courts in New Zealand have so far reduced this figure, because of the benefit the victim gains from receiving ACC weekly compensation without having to resort to litigation themselves.278
Because the assumptions as set at Step One are based on forecast figures, it may be necessary to have multiple forecasts, depending for example, on the potential future
275 This table sets out average weekly earnings, categorized by occupation, gender, age and ethnicity.
Statistics New Zealand “ NZ (dot) Stat – Earnings from main wage and salary job by occupation (ANZSCO 2006), sex, age groups and ethnic groups”
<http://nzdotstat.stats.govt.nz/wbos/Index.aspx?DataSetCode=TABLECODE7475> NZ (dot) Stats.
276 The New Zealand Treasury “Discount Rates and CPI Assumptions for Accounting Valuation Purposes” (30 June 2019) <https://treasury.govt.nz/information-and-services/state-sector- leadership/guidance/financial-reporting-policies-and-guidance/discount-rates/discount-rates-and-cpi- assumptions-accounting-valuation-purposes> The New Zealand Treasury.
277 Wai Shing, above n 188 at [34]; Ask Metro Fire, above n 189 at [24].
278 Wai Shing, above n 188 at [88], [90]; Ask Metro Fire, above n 189 at [28], [32].
economic status as that relates to salary increases and job availability. This may result in multiple calculations with multiple loss of earnings figures, in a range.
C Variations on application in practice
The open-ended approach is not one standardised approach as the statutory shortfall approach is. Each Court has taken a slightly different variation on this approach.
In one case, WorkSafe requested that PwC prepare a future loss of earnings calculation as calculated above, but without making any allowance for income increase at any level above the rise in the Labour Cost Index (Which PwC estimated to be CPI + 0.2%). This would mean no allowance made for any increase in earnings due to promotion.
PwC considered that this methodology did not truly reflect the victim’s future income loss, as they noted that rises in the Labour Cost Index are merely a rise in the base rate (cost) for labour, given a fixed quantity and quality of labour input, which does not make any allowance for promotion or merit based wage increases of individual employees.
What this means is that there are now effectively two variations on the open-ended approach: First, where the victim’s actual pre-injury earnings are grown at a rate which includes promotional increases, and secondly, where the victim’s actual pre-injury earnings are only grown at the rate of increase of the Labour Cost Index. The second approach has been applied in subsequent cases where the open-ended approach has been used.279
In Wai Shing, Judge McGuire excluded the value of Kiwisaver employer contributions, on the basis that if the victim were self-employed, they would not receive those contributions.280 The victim in Wai Shing was not self-employed,281 rather he was an employee on wages, so it is difficult to see why Kiwisaver employer contributions were deducted for this reason.
D Comparison of Outcomes under the Statutory Shortfall and Open-Ended Approaches
Given the different factors that the statutory shortfall and open-ended approaches consider, it is understandable that these methods produce vastly different outcomes.
279 Wai Shing, above n 188 at [96]; Ask Metro Fire, above n 189 at [21], [24].
280 Wai Shing, above n 188 at [98].
281 At [7], [9].
For example, in Wai Shing, a case where a worker suffered injuries rendering them paraplegic, the statutory shortfall approach produces a top up of between $226,800 and$259,700.282 The open-ended approach produced a top up of between $455,600 and
$495,500.283
In Oceana Gold, a case where the victim died, using the figure from the High Court Judgement, the statutory shortfall approach produces a top up of $121,275.36.284 The open-ended approach was based on three predictions of the victim’s potential for future income increase, which led to top ups of between $700,000 and $2,770,000.285
|
Case
|
Statutory shortfall
|
Open-ended
|
|
Wai Shing
|
$226,800-$259,700
|
$455,600-$495,500
|
|
Oceana Gold
|
$121,275.36
|
$700,000-$2,770,000
|
In Wai Shing, this disparity is explained by the fact the victim received a pay rise shortly before being injured.286 Under the ACC methodology for determining pre-injury earnings, the victim’s earnings in the year prior to injury are averaged over the same period.287
This means that the full effect of a pay rise pre-injury, on future earnings is not fully captured unless the victim was earning at the higher rate for the entire year prior to injury. This factor is noted by PwC in one letter to WorkSafe, as limiting the accuracy of an approach where loss of earnings are calculated based on the ACC methodology.
E Advantages and Disadvantages of the Statutory Shortfall Approach
The statutory shortfall approach does not accurately capture a victim’s earnings. Wai Shing provides an example of how a pay rise shortly before injury will not be fully captured by this methodology.
No account is taken of the victim’s possibility to earn future promotional earnings increases. In a letter to WorkSafe, PwC also noted that the statutory shortfall was unlikely to compensate the victim adequately in the long term as increases in ACC weekly compensation are at the increase of the Labour Cost Index, which PwC considered was slightly below actual salary inflation. Neither are the victim’s
282 At [34]; Without Kiwisaver Employer Contributions: $226,800, With Kiwisaver $259,700; Discussed at Chapter VII E below; Statutory shortfall is calculated without Kiwisaver Employer Contributions.
283 At [34]; W/O Kiwisaver; $455,600, W/ Kiwisaver: $495,500; Discussed at Chapter VII F below; Open-ended approach as applied in practice has not included Kiwisaver Employer Contributions.
284 Oceana Gold, above n 190 at [86].
285 Oceana Gold (District Court), above n 240 at [34].
286 Wai Shing, above n 188 at [9], [34].
287 Accident Compensation Act, Schedule One, cl 34.
Kiwisaver cmployer contributions included, as ACC does not pay these to a victim receiving weekly compensation.288
Though Venning J noted in Oceana Gold that the statutory shortfall approach could be prepared without the use of actuarial calculations,289 it is likely that without the use of actuarial expertise, these calculations would be performed incorrectly. Future cash flows occurring over periods of time cannot be accurately added together without performing actuarial calculations. Because the victim’s earnings are already calculated by the Accident Compensation Corporation, it will require less input on the part of the Court to determine the top up under the statutory shortfall approach. However, as the ACC pay periodic weekly compensation for loss of earnings, and not a lump sum, actuarial expertise will still be required to ascertain the total present value of the shortfall.
The simplicity in this method is only illusory; the application of the statutory shortfall in Crafar Couch Construction shows that there are still reasonable variations possible to this approach.290
The statutory shortfall approach also appears to be an excessively restrictive interpretation of the combination of s 32(1)(c) and s 32(5) of the Sentencing Act.291 The effect of these two sections can be said to bar reparations for consequential loss in respect of compensation paid by ACC; to prevent double recovery of loss. Beyond that, the wording gives no other restriction on awarding reparations to compensate the victim for their loss. It certainly does not appear to import conceptions of the social contract.
This interpretation is supported by Todd, who notes that s 32(5) was specifically intended to overturn Davies, stating that reparation can be ordered (my italics):
in respect of that 20 percent and, indeed, of any other shortfall suffered by the victim in obtaining full compensation for his or her loss. The Supreme Court made its decision in Davies based on the logic of the accident compensation scheme’s universal no-fault coverage, which logic is disregarded by the words of s 32(5).292
F Advantages and Disadvantages of the Open-Ended Approach
It is also the case that the open-ended approach has no one accepted methodology, as each court has applied its own method. This creates a lack of consistent outcomes, making it difficult for WorkSafe, on behalf of victims, to assess the level of
288 Helen Twose “Kiwisaver: ACC earners miss out on boss top-ups” The New Zealand Herald (online
ed, Auckland, 15 May 2016).
289 Oceana Gold, above n 190 at [67]-[68].
290 Discussed at Chapter VI B.
291 Sentencing Act, s32(1)(c), s 32(5).
292 Todd, above n 53 at 2.3.03(4).
compensation victims are likely to receive. Victims in similar circumstances may receive different reparations awards from different Judges. Offenders may also find it difficult to assess their potential level of liability in the event of a successful prosecution.
This lack of consistency gives judges a great deal of discretion to make deductions and discounts as they see fit, even where this may not be technically correct in terms of the actuarial methodology which underpins the open-ended approach.
Though this discretion can at times lead to poor outcomes for both defendants and victims, undeniably the customized nature of the open-ended approach allows Judges, with the assistance of actuarial evidence, to tailor the award of compensation to the circumstances of the particular victim.
For example, in Oceana Gold at the District Court, Judge Ingram reduced the figure produced by the PwC actuaries, on the basis that the inflation figures adopted by PwC were unrealistic, as was the interest rate PwC determined for discounting purposes.293 He considered that the victim’s future career prospects, as forecast by PwC, presumably based on statistical assumptions as discussed above, were incorrect.294 Judge Ingram decided this:
based at least in part on my knowledge of Waihi and its economy, and hearing a good deal about that subject as a sitting Judge routinely rostered to sit in Waihi.295
The amount of discretion implicit in the open-ended approach allows for other deductions to be made too. For example, in Wai Shing, and Ask Metro Fire, Judges reduced the end top up award by 50%, and 15%296 respectively, due to the perceived benefit of the victim receiving ACC compensation without having to resort to costly litigation themselves.297 The reduction was also made because of the certainty that ACC provides in giving the victim a steady stream of income, and a desire to preserve the integrity of the ACC Scheme.298
The sentencing process can also become convoluted if the correctness of the underlying actuarial calculations are questioned by the offender.299
293 Oceana Gold (District Court), above n 240 at [34]-[37].
294 At [36].
295 At [37].
296 Wai Shing, above n 188 at [90].
297 At [88].
298 At [88], [89].
299 Wai Shing, above n 188 at [19]-[46], Ask Metro Fire, above n 189 at [18]-[26].
VIII Alternative Methodologies for Computing Loss of Earnings
This chapter will examine potential alternatives to the statutory shortfall and open- ended approaches. Chapter VII identifies that neither the statutory shortfall, or the open- ended approaches on their own produce entirely satisfactory results. I will briefly examine how other jurisdictions compensate loss of earnings for victims of crime. No other jurisdiction features a comprehensive no-fault ACC Scheme, and notionally financially uncapped awards of reparation in the criminal justice system. Accordingly, I have focused on methodologies from other jurisdictions that are of assistance in addressing my research question.
A Criminal Injury Reparations Overseas
This section will detail Criminal Reparation Schemes operating in Australia and the United Kingdom, and why they are unsuitable as models to guide the New Zealand Reparations Scheme.
B Analysis:
Both the Australian schemes and the Criminal Injuries Compensation scheme are targeted at correcting different losses to the New Zealand Criminal Justice Reparations scheme. In the case of the Australian schemes, this is only short-term, actual or past loss. This is clear from the low caps on maximum payments under these schemes.300 Most Australian states also have Workers’ Compensation Schemes that pay weekly compensation in a similar way to ACC.301
In the case of the Criminal Injuries Compensation Scheme, this is as a compensation vehicle of last resort.302 Though the cap is more generous,303 loss of earnings is only compensated at the National Statutory Sick Pay rate rather than at the victim’s actual loss of earnings.304
Significantly, in both Australia and the United Kingdom, victims of injury are not precluded from bringing civil litigation to recover loss that results from injury. This
300 For example, in New South Wales, loss of income can only be compensated up to AU$20,000; See
“Financial Support – Financial assistance for economic loss”
<https://www.victimsservices.justice.nsw.gov.au/Pages/vss/vs_financial_support/vs_financial-support- page.aspx>.
301 For example, in New South Wales, periodic Workers Compensation is available for injuries sustained at work up to a maximum cap: See “Weekly payments for Workers Insurance – How weekly payments are calculated” <https://www.icare.nsw.gov.au/injured-or-ill-people/workplace- injuries/payments/weekly-payments/>.
302 Ministry of Justice The Criminal Injuries Compensation Scheme 2012 (13 June 2019) (UK) at [98] (b); See also “Criminal injuries compensation: a guide – How do you apply for a payment?”
<https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide>.
303 Total award, including loss of earnings, is 500,000 Pounds; See The Criminal Injuries Compensation Scheme 2012 above n 302 at [31].
304 The Criminal Injuries Compensation Scheme 2012, above n 302 at [47]-[48].
means that schemes that give victims of crime compensatory awards do not need to be as expansive as they are in New Zealand, where victims of injury are unable to recover their losses outside of what entitlements ACC, and the compensation available under the reparations scheme provides.305
305 Accident Compensation Act s 317(1).
C Compensation for Loss of Earnings under United Kingdom Tort Law Damages
This review of compensating loss of earnings under Tort Law damages in the United Kingdom is based on Sweet & Maxwell’s “McGregor on Damages”, 20th edition.306 It is important to examine this methodology, as in the absence of a no-fault ACC Scheme, and expansive criminal justice reparations or injuries scheme, tort law is the main method victims of injury in overseas jurisdictions can use to recover their losses.
The basic measure of tortious damages is to place the injured in the position they would have been had they not been injured in the first place.307 There are two ways in which the measure of damages are assessed in tort; the most commonly used “General Method of Assessment”, and the “Blamire Award”.308
Formula:
!pre-injury-post-injury" ! years of
*discount" *adjustment
earnings earnings† lost earnings†
The † denotes an estimate.
306James Edelman (ed) McGregor on Damages (20th ed, Sweet & Maxwell, London, United Kingdom,
2018).
307 Lord Blackburn, in Livingstone v Rawyards Coal Co. [1880] UKHL 3; (1880) 5 App. Cas. 25 (HL) defined damages as “that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation” at 39, cited by Edelman, above n 306 at 2-002. Though both loss of earnings pre-trial, and future loss of earnings can be compensated for, pre-trial loss of earnings (Actual loss to the date of the trial) should be pleaded as special damages, whilst future loss of earnings should be pleaded as general damages. There is no distinction on the method of calculation. Edelman, above n 306 at 40- 062.
308 Edelman, above n 306 at 40-066 – 40-068.
309 At 40-066.
Courts can also adopt a discretionary, or broad brush approach generally described as the Blamire award.310 Blamire awards tend to be used in situations where there are too many uncertainties to calculate claimant’s future earnings. This may occur where the claimant was injured as a child, has little or no employment history, or an unclear career path.311 Blamire awards can also be used to compare against an award calculated under the general method of assessment.312
D Fatal claims
Where the victim has died, dependents are unable to claim for the loss of earnings of the victim;313 they can only claim for the “Pecuniary Benefit” the relationship with the victim would have provided.314 The surviving spouse or partner is generally only able to claim up 66.6% of the pre-injury earnings of the deceased victim, where no children are present, and where dependant children are present, this rises to 75%.315 However, the earnings of the surviving spouse or partner can also affect the amount of earnings they are able to claim.316
E Analysis:
Whilst the general method of assessment as set out317 appears relatively simple and formulaic, in practice it becomes very complex to apply. In particular, the determination of the multiplier is difficult as there are so many speculative variables at play. Similar to the speculation is required in calculating compensation under the open-ended approach.318
This process is unlikely to produce “speedy and inexpensive determination” of reparations at sentencing, which the majority of the Supreme Court in Davies considered was the legislative intent in developing the reparation provisions.319 In the United Kingdom these concerns have been partially resolved through the development
310 At 40-067.
311 At 40-068; See further Blamire v South Cumbria HA [1993] PIQR Q1.
312 At 40-068.
313 At 41-026.
314 At 41-026.
315 At 41-043; A similar policy is adopted by ACC when determining weekly compensation for surviving spouses, or partners, and children, however the exact percentages differ: Discussed at Chapter VI above, and clauses 66, and 70 of Schedule One of the Accident Compensation Act.
316 At 41-045 – 41-049.
317 At 40-066.
318 Discussed at Chapter VII.
319 Davies, above n 94 at [11].
of the Ogden tables. The Ogden Tables provide a process for determining a multiplier for claimants in different circumstances.320
The Ogden Tables have been developed using average life expectancies and social statistics from the United Kingdom.321 This means that the Ogden Tables could not be “imported” into the New Zealand justice system, to simplify actuarial calculations. New tables would have to be made, bespoke for New Zealand.
Elias CJ in Davies noted that “Where there is substantial dispute as to....measure of loss, the court may take the view that compensation is not appropriately dealt with through the summary criminal procedure for ordering reparation.”.322 The majority also were reluctant to incorporate more complex calculations of the quantum of loss suffered by a victim, over and above what is paid for by the ACC as weekly compensation, for the same reasons.323 These concerns were also identified by Venning J in Oceana Gold, noting that Parliament did not intend for actuarial calculations to be imported into the sentencing process, and that New Zealand courts prefer a “broad brush” approach to these matters.324 Whilst the comments made by Elias CJ were made in the context of deciding that no top up could be awarded at all, I consider they still have relevance for determining the quantum of a top up. These comments emphasise the need for a simple and quick process of calculation, something which still becomes an issue when determining the quantum of the top up.
As New Zealand does not currently have an equivalent to the Ogden Tables, calculations of loss of earnings under a tort law damages method would be calculated in a similar way to how the open-ended method computes damages, with the use of actuarial expertise. There would be no advantage in adopting the method used to computes tort law damages for injury unless equivalent Ogden Tables were to be created for New Zealand.
320 Government Actuary’s Department Actuarial Tables, With explanatory notes for use in Personal
Injury and Fatal Accident Cases, Prepared by an Inter-disciplinary Working Party of Actuaries, Lawyers, Accounts and other interested parties, Seventh edition (1 August 2011) at 5, 8.
321 At 8, 14.
322 Davies, above n 94 at [10].
323 At [35]-[36].
324 Oceana Gold, above n 190 at [55]-[57].
IX Final Analysis: The Way Forward for New Zealand
In this chapter, I explain why none of the approaches discussed thus far produce a satisfactory result, and put forward a better approach.
A Overseas Methods of Compensation
Tort law damages as implemented in the United Kingdom are complex to apply, requiring legal and technical infrastructure New Zealand has not developed. The development of actuarial tables for New Zealand will not necessarily make tort law damages simple to apply within the criminal justice sentencing process. There will always be issues of complexity and speculation, as individual circumstances make future income calculation in this manner difficult.325 These same issues are also present for determining loss of earnings under the open-ended approach.326
Criminal compensation schemes overseas are targeted at compensating short term loss, paid for by the state, rather than the New Zealand reparations scheme which covers broader losses, but is paid for by the offenders.327 Overseas claimants are generally able to bring litigation in tort to recover damages for personal injury, which is impossible within the New Zealand legal framework.328
B The Statutory Shortfall and Open-ended approaches
The open-ended approach produces the fairest outcomes for victims, capturing their true loss of earnings after an injury. However, at times this has only been in theory; Deductions made by Judges have at times been quite unfair. The open-ended approach is also complex, almost certainly requiring actuarial expertise to determine the victim’s lifetime loss of earnings.329
The statutory shortfall approach produces more easily calculable outcomes, promoting certainty of outcome for victims, WorkSafe, and offenders, and will result in fewer funds being spent litigating the correctness of calculations. However, due to fact that the ACC do not allow for increases in earnings above inflation when determining weekly compensation,330 the statutory shortfall will not truly capture a victim’s lifetime loss of earnings over a long period of time.331
This tension can ideally be resolved by applying two different methodologies based on the length of time the loss of earnings or incapacity is expected to last.
325 Discussed at Chapter VIII C above.
326 Discussed at Chapter VII F above.
327 Discussed at Chapter VIII A above. 328 Accident Compensation Act, s 317(1). 329 Chapter VII F above.
330 Accident Compensation Act, s 115; See further at n 274 above.
331 Discussed at Chapter VII E above.
C Legislative change required?
The explanatory materials for the Bill which overturned Davies spoke of allowing victims to recover loss not compensated by ACC.332 Victims would not be able to recover their full loss if the statutory shortfall approach was applied in all circumstances.
There is nothing in the provisions governing awards of reparation for consequential loss333 to restrict the quantum of awards, except to prevent double recovery of losses.334 Though ambiguous, the lack of restriction in s 32(5) makes it possible for an open- ended approach to be adopted, especially as this will maximize compensation to victims of crime. This falls in line with promoting the interests of victims of crime, as set out in the Sentencing Act.335
I consider that Venning J interpreted s 32(5) too restrictively, by reading into calculations for the quantum of reparations, the ACC methodologies for calculating loss of earnings. In reaching his decision, Venning J relied very heavily on the “social contract” reasoning336 of the majority of the Supreme Court in Davies, a decision overturned by Parliament.
If Parliament had intended for reparations for loss of earnings to be calculated according to the ACC methodology or the statutory shortfall, this could have been stated in the revised wording of s 32(5). Parliament could have expressly imported conceptions of the social contract into reparations legislation, as was done for the ACC Scheme.337 They have not.
It is possible that courts can find a solution to this problem as a matter of interpretation, rather than requiring a revised statute. I am not suggesting that the wording of s 32(5) could not clearer.338 Rather, the wording does not need to be changed to allow Courts to consistently determine the quantum of reparations payable under s 32(1)(c).339
The solution I propose are guidelines the Courts can apply to interpret s 32(1)(c) and s 32(5).340
332 Victims of Crime Reform Bill (319-1) at 14.
333 Sentencing Act, s 32(1)(c), s 32(5).
334 Discussed at Chapter VII E above; See further at n 294 above. 335 Sentencing Act, s 3(d), s 7(1)(c), s 7(1)(d), s 8(1)(f), s 12(1). 336 Discussed at Chapter III A above.
337 Accident Compensation Act, s 3(d).
338 Discussed at Chapter III B.
339 Sentencing Act 2002.
340 Sentencing Act 2002.
D Proposed Guidelines
Where the victim’s injury is expected to last five years or less, the statutory shortfall approach should normally be applied. Given that the income differential between the statutory shortfall and open-ended approaches is not likely to be significant in the short- term period, this will reduce the complexity of calculating reparations for the majority of short-term incapacity loss of earnings cases.
I have chosen a five year period for a short-term loss period as it is unlikely that a victim’s earnings will change significantly over this period. The chances are small of the victim having a promotional pay increase of significance during this period. Though actuarial expertise will be needed to compute the final award, without needing to forecast earnings increases due to promotion, and other contingencies, the calculations will be simplified.
The statutory shortfall approach is relatively simple to calculate. All that needs to be done to determine the value of the top up is to calculate the total value pre-injury earnings as calculated under the ACC Scheme over the duration of the incapacity. The value of ACC weekly compensation to be paid to the victim over the same period of time is then deducted.341
(a) Significant Disparity Exception
However, there are examples where this will still produce a significant disparity between the victim’s actual earnings over the five-year period, and earnings as calculated under this method. An example of this is in Wai Shing, where the victim received a pay rise shortly before his injury.342 This will also be the case where the victim receives a pay rise prior to the injury, but where that pay rise will only take effect after the date of injury.
Accordingly, there should be some discretion to depart from the statutory shortfall approach in exceptional cases. That discretion should only be applied where there is clear evidence that there would be a significant disparity between the statutory shortfall and actual earnings. Mere speculation is not sufficient. Wai Shing is an example of where there is sufficient evidence, since the pay rise had already occurred.343 Where there is clear evidence of a likely significant disparity, it may then be necessary to make use of actuarial expertise to calculate the proper reparation payment.
341 Discussed at Chapter VII A above.
342 Wai Shing, above n 188 at [9], [34].
343 Wai Shing, above n 188 at [9], [34]
However, “Significant Disparity” should not be formularised, in terms of percentages or figure, as this will undermine the discretion this “safety valve” will give Judges. The “Significant Disparity” exception will allow Judges to do justice in the circumstances facing the Court. Exercise of this discretion may well need to involve the use of actuarial expertise, as in the open-ended method, to determine the significance of the shortfall.
E Long Term Loss of Income:
Where the victim suffers an injury, or death, that results in a long-term loss of income, greater than five years, the differential in future earnings between earnings calculated under the ACC methodology, and the victim’s likely future earnings, are likely to be much greater. This makes it more appropriate to consider more complex methodologies involving the use of actuarial expertise, as the potential injustices from undercompensating victims are much greater.
If the calculations are performed incorrectly, the victim will have little recourse to get this corrected. Even if the use of actuarial expertise is costly, and time consuming in these situations it can be justified by the need for precise and accurate calculations, rather than the more imprecise statutory shortfall approach that applies to short term loss, where the risk of under compensation is lessened.
For long term loss of income, the top up should be calculated according best actuarial practice at the time of sentencing. This is likely to be similar to the open-ended approach.344
This may involve taking into account statistical indicators, for example of the victim’s likelihood of promotion within their industry, the rise in the cost of living over the incapacity period, the victim’s expected (pre-injury) working lifetime, and the chances of early mortality, ahead of the victim’s life expectancy pre-injury.345
This will ensure calculations are carried out according to best practice at the time of sentencing, rather than tying actuaries down to one method, which may with the passage of time and the building of institutional knowledge, become outdated.
Adopting a methodology requiring the use of professional actuarial expertise for each case where the long-term approach is to be applied, will avoid the need to create legal infrastructure, such as the Ogden Tables.346 While the creation of officially endorsed
344 Discussed at Chapter VII B above.
345 Discussed at Chapter VII B above.
346 Discussed at Chapter VIII E above.
actuarial tables will make the calculation of loss of earnings over the period of the incapacity easier, by prescribing the multiplier, there are disadvantages to this approach. Tabularized actuarial calculations may not be able to fully capture the victim’s circumstances, in contrast with best actuarial practice. If not frequently updated, the tables will not keep up with changes in social statistics and other factors which underpin the calculations.
Allowance should be made in those calculations for promotional increase of the victim, as professional actuaries are able to make these calculations. Whilst there is an element of speculation, absent evidentially clear indicators to the contrary (Disciplinary issues at work, showing an inability to perform the job description, for example), victims should be allowed the benefit of promotional increases they likely would have received.
In Wai Shing, Judge McGuire declined to include the victim’s Kiwisaver employer contributions, because self-employed individuals would not receive the benefit of employer contributions.347
I consider that Kiwisaver employer contributions should be included in the calculation for loss of earnings, if an employee is no longer able to work, this is part of their income that they will no longer receive. Where the victim is a self-employed person, or an independent contractor, it is appropriate to exclude Kiwisaver employer contributions, as those individuals do not receive that benefit.
For compensation in fatal cases, the question arises as to how long the partner or spouse of victim should be compensated for. ACC weekly compensation for fatal claims continues for five years,348 or in some cases until care of any children ceases, or those children reach age 18.349
The spouse or partner of the victim can only receive up to 60 per cent of the 80 per cent possible entitlement to weekly compensation of the victim (60% * 80% = 48% of Pre- injury Income).350 The remaining 20 per cent is apportioned between the children, if present.351
347 Wai Shing, above n 188 at [98].
348 Accident Compensation Act, Schedule One, cl 66(5)(a).
349 Schedule One, cls 66(5)(b) – 66(5)(d).
350 Discussed at Chapter VI B 1 above; Accident Compensation Act cl 66(2).
351 Accident Compensation Act, Schedule One, cls 70(2), 74.
Under tort law, the question is one of the actual loss suffered by the victim.352 For fatal claims, the length of that loss is the likely remaining extent of the victim’s working life, and the length of time for which the relationship, or dependency, between the deceased victim and dependents is expected to last .353
The offender should not compensate the surviving spouse or partner for loss they do not incur. If the victim’s spouse or partner enters a new relationship at some time after the death of the victim, the combined family income will increase, potentially to level of income prior to the victim’s death, or to a higher level of income. This may not be the case for every surviving spouse or partner. A balance must be struck between compensating the surviving spouse or partner for a period of time long enough to give financial security, without giving the spouse or partner a windfall if they enter a new relationship and cease to suffer from a shortfall in earnings.
(a) Length of the shortfall in income being compensated for
The cut off to long term compensation for fatal claims would be set at; up to the lesser of 25 years, or until the victim would have reached the age of New Zealand Superannuation eligibility.354 This will in most circumstances be longer than the five years weekly compensation that the spouse or partner will receive from ACC, and so would give the surviving spouse or partner some level of security in the continuation of their income.
(b) Quantum of shortfall being compensated for
The court in Crafar Couch held that the surviving spouse or partner should receive a top up between the 60 per cent level of weekly compensation for surviving spouse or partners, and the 80 per cent level of weekly compensation that was the victim’s entitlement had they survived.355 The true loss of income for the surviving spouse or partner is between the level of entitlement they receive, and the combined partnership or family income they were receiving pre-injury.
Surviving spouses or partners should receive a top up between the level of entitlement they receive, at effectively 48 per cent of the victim’s pre-injury earnings, and the victim’s full pre-injury earnings as calculated under the open-ended approach. This is
352 Edelman, above n 306 at 40-057, 41-038.
353 At 41-051 - 41-071.
354 See further at: New Zealand Government “NZ Superannuation age to lift to 67 in 2040” (press release, 7 March 2017). Age of eligibility for New Zealand Superannuation has risen to 67 for individuals born after the 30th of June 1972. For persons born prior to this date, it is 65.
355 Discussed at Chapter VI B 1 above.
consistent with the open-ended approach, promoting victim interests, and the concept of meeting the victim’s full loss.356
(c) Weekly Compensation for children
To avoid “double-recovery”, any ACC weekly compensation paid to a child of the deceased357 should be deducted from the top up award, just as the victim’s ACC weekly compensation entitlements are. These entitlements are paid until the later of the child turning 18 years of age, or if the child continues full time study, the earlier of until that child ceases or completes study or turning 21 years of age.358 To prevent speculation of the child’s scholarly goals, the deduction should be made on the basis of the child turning 18 with no further study ongoing.
F Discounts on Top ups
In the tort law system of damages it is usual to reduce the award as the victim is receiving funds presently, which are future cash flows, that they can invest and earn a return upon.359 This ability to earn a return on the award is accounted for in the discount rate,360 when calculating the future loss of income, so further discount should not be made on that basis for reparations awards.
It is hard to see why discounts should be justified on the basis the victim has received a benefit from the ACC Scheme, as was done in Wai Shing, and Ask Metro Fire.361 Although the victim has received compensation for loss of earnings without having to engage in the time consuming and costly exercise of litigation, it is not a true benefit, as the victim could not have brought legal proceedings themselves.362
Judge Mabey was correct to state that in Supermac Group363 that ACC weekly compensation was a right, and that weekly compensation without litigation could not be a benefit as victims of injury could no longer bring proceedings for their loss.
In Wai Shing, Judge McGuire also justified the discount on the basis of the need to protect:
“the integrity of the system and the societal benefits gained out of the no fault system.”364
356 Discussed at Chapter VI B 1, VII, IX C above.
357 Accident Compensation Act, Schedule One, cl 70.
358 Schedule One, cl 70(5).
359 Edelman, above n 306 at 40-119.
360 At 40-119.
361 Wai Shing, above n 188 at [88]-[90]; Ask Metro Fire, above n 189 at [27]-[32].
362 Accident Compensation Act s 317(1).
363 Supermac, above n 249 at [52]; Discussed at Chapter VI A above.
364 Wai Shing, above n 188 at [89].
It is arguable that the integrity of the ACC Scheme is protected by the statutory bar on proceedings,365 which will prevent the victims from making any additional claim against the individual who caused their injury.
No discount should be made on the basis that the victim has receiving other ACC payments, such as lump sum compensation for permanent impairment,366 or child care following a fatal accident,367 This is because these payments compensate losses other than earnings, that Parliament has decided are compensable separately, by distinct payments.
Any discount or reduction made on the final award should be based on statistical or actuarial evidence before the Court, or to prevent the victim from recovering loss they have already been compensated for, such as payments made by an employer.
G Contributory Conduct of the Employee
Section 9(2)(c) of the Sentencing Act requires the Court to consider the conduct of the victim as a mitigating factor during sentencing.368
In Delta Utility Services, Judge Cook declined to make an award to compensate for future, or ongoing loss, considering that the victim’s conduct in part contributed to his injuries.369
In Oceana Gold, Venning J agreed with Duffy J in Eziform Roofing Products,370 who held that an employer’s sentence should not be mitigated due to the unwise conduct of the employee resulting in the injury371. To do so would undermine the Primary Duty of Care372 required of the employer, which may include preventing (so far as is “reasonably practicable”373) the unwise conduct of that employee in causing their own injury.374 Venning J also held that this applied to determining the quantum of
365 Accident Compensation Act, s 317(1).
366 Schedule One, cl 54, Section 69(1)(d); Lump sum compensation for permanent impairment provides compensation for the physical or mental harm caused by an injury itself, for example, the loss of an arm. Loss consequent on physical harm is compensated by, for example, weekly compensation; Schedule One, cls 32-46.
367 Schedule One, cls 76, 78(1); ACC childcare payments are a compensation to allow the surviving spouse or partner to arrange for childcare, where that childcare may have been taken care of by the deceased victim.
368 Sentencing Act, s 9(2)(c).
369 Delta Utility Services, above n 178 at [61]-[62].
370 Department of Labour v Eziform Roofing Products [2013] NZHC 1526. 371 Eziform, above n 370 at [52], cited in [61] of Oceana Gold, above n 190. 372 Health and Safety at Work Act, s 36.
373 Section 36(1).
374 Eziform Roofing Products, above n 370 at [52].
reparation.375 Venning J also agreed with Duffy J that the importance of the Primary Duty of Care could carry more weight than the importance of applying s 9(2)(c).376
I consider on this basis that Venning and Duffy JJ reached the correct conclusion, that the contributory conduct of an employee should not be used reduce the award of reparation.
375 Oceana Gold, above n 190 at [62]-[63].
376 Oceana Gold, above n 190 at [61]-[62].
X Conclusion
In terms of providing compensation for victims of injury, New Zealand is unique worldwide in having a comprehensive, no fault ACC Scheme. New Zealand is also unique in terms of allowing victims of crime to recover loss of earnings as a result of criminal offending from an offender through a notionally uncapped reparations scheme.377
This dissertation aims to address an issue at the nexus of those two unique features of New Zealand law. I have outlined why the current wording of s 32(5)378 is ambiguous, resulting in a lack of consistency when computing the quantum of reparations for loss of earnings. Review of case law to date has also shown why the existing methods of compensation are on their own unsatisfactory. The statutory shortfall approach is simple to calculate, but in the long term denies victims full compensation for their losses. The open-ended approach attempts to capture a victim’s true loss, but is technically difficult to calculate, and ambiguous.379
The two-stage approach I have chosen attempts to trade off the disadvantages of each of the existing approaches against each other: The statutory shortfall approach will apply where its disadvantages are least felt, for short term loss of earnings, of less than five years. The open-ended approach will apply for losses beyond this period, and for fatal claims, where the greater range of factors the open-ended approach considers will allows this approach to fully capture a victim’s loss, including for example future increases in salary due to promotion.380
Reparations are the only means victims have to recovering loss of earnings above that covered by the ACC Scheme.381 To achieve Parliament’s intentions to adequately compensate victims of crime for their actual losses, it is important that the methodologies applied by the Courts accurately capture a victim’s loss of earnings. The recommended methodologies set out in this dissertation will, if adopted by the Courts, allow for fairer and more just outcomes for victims. These methods will also bring clarity and consistency for WorkSafe and offenders.
Behind the detail of calculations which have been at issue is the contest between the social contract conceptions underpinning the ACC Scheme and the desire to provide for the interests of crime. At times, Courts have tried to uphold the “integrity” of the ACC Scheme. Parliament has attempted to give priority to victim interests, but without
377 Discussed at Chapter VIII above.
378 Sentencing Act, s 32(5).
379 Discussed at Chapter VII above.
380 Discussed at Chapter IX above.
381 Accident Compensation Act, ss 317(1), 319(1).
considering how this should be applied in practice. This has resulted in decisions such as Davies,382 and Oceana Gold.383
Contrary to the opinions of some Judges, and the Law Commission,384 I consider the interests of victims of crime should be given priority over more general interests such as the integrity of the ACC Scheme. Where an individual has been given a lifelong incapacity to earn, through the carelessness or recklessness of their employer, it is right that the employer should made to top up the earnings they will lose out on as a result of living off the ACC Scheme for the rest of their lives. It is not as if people engage in risky employment purely out of the enjoyment of, for example, driving heavy machinery, or servicing electric power lines. People engage in risky employment because they need to earn a living.
This produces inconsistent outcomes for victims of injury, as not all victims injured by the actions of their employers will have their wrongs vindicated through prosecution by WorkSafe. But it is those victims, whose injuries become the subject of prosecution, who we can do the most right by. That is what I have hoped to achieve in writing this dissertation.
Those victims who are not able to receive top up earnings through reparations will still benefit from the ACC weekly compensation they receive, at 80 per cent of their pre- injury earnings.385 Allowing some victims to recover full compensation whilst others receive a fair level of compensation is in my opinion a more just solution than denying any victim full compensation, merely for the reason that all victims of injury cannot receive full compensation.386
382 Davies, above n 94.
383 Oceana Gold, above n 190.
384 Law Commission Compensating Crime Victims (NZLC R121, 2010) at 12-16.
385 Accident Compensation Act, Schedule One, cl 32(3).
386 Connell, above n 153 at 315.
XI Bibliography
A Cases
Davies v New Zealand Police [2009] NZSC 47, [2009] 3 NZLR 189.
Davies v Police [2007] NZCA 484, [2008] 2 NZLR 645.
Davies v Police (2007) 8 NZELC 98,691.
Department of Labour v Eziform Roofing Products [2013] NZHC 1526. Department of Labour v Hanham & Philp Contractors [2008] NZHC 2076; (2008) 6 NZELR 79 (HC). Kapa v R [2012] NZSC 119, [2013] 3 NZLR 1.
Oceana Gold v WorkSafe New Zealand [2019] NZHC 365.
Police v Davies (District Court, Christchurch, CRN 05009025688, 26 September 2006, Judge M J Green).
Police v Freightlines Ltd [2016] NZDC 9452.
Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881.
WorkSafe New Zealand v Agricentre South Limited [2018] NZDC 7756.
WorkSafe New Zealand v Ask Metro Fire [2017] NZDC 13314.
WorkSafe New Zealand v Corboy Earthmovers Ltd [2016] NZDC 21982.
WorkSafe New Zealand v Crafar Couch Construction (Picton) Ltd [2019] NZDC 8209.
WorkSafe New Zealand v Cropp Logging Limited [2018] NZDC 20232.
WorkSafe New Zealand v Delta Utility Services [2016] NZDC 9452. WorkSafe New Zealand v Gordon Developments Ltd [2016] NZDC 5535. WorkSafe New Zealand v Hamilton City Council [2016] NZDC 18590.
WorkSafe New Zealand v Hamilton Flooring Ltd [2016] NZDC 15489. WorkSafe New Zealand v Luke Martin Roofing Ltd [2018] NZDC 11547. WorkSafe New Zealand v Oceana Gold [2018] NZDC 5274.
WorkSafe New Zealand v Oropi Quarries Ltd [2016] NZDC 10755.
WorkSafe New Zealand v Pitango Pty Ltd [2016] NZDC 8537.
WorkSafe New Zealand v Supermac Group Resources Limited [2019] NZDC 15023.
WorkSafe New Zealand v Transport Waimate Ltd [2016] NZDC 9468.
WorkSafe New Zealand v Wai Shing [2017] NZDC 10333.
Redding v Manly Life Saving Club Inc & Anor [2018] NSWDC 278.
Blamire v South Cumbria HA [1993] PIQR Q1 (CA).
Livingstone v Rawyards Coal Co. [1880] UKHL 3; (1880) 5 App Cas 25 (HL).
B Legislation
Accident Compensation Act 1972. Accident Compensation Act 2001.Accident Compensation Amendment Act 2010. Criminal Justice Act 1985.
Health and Safety at Work Act 2015. Land Transport Act 1998.
Sentencing Act 2002.
Sentencing Amendment Act 2014.
Injury Prevention, Rehabilitation, and Compensation (Indexation) Regulations 2002. Sentencing Amendment Bill 2011 (No 2) (319-3D).
Sentencing and Parole Reform Bill 2001 (148-1). Sentencing and Parole Reform Bill 2002 (148-2). Victims of Crime Reform Bill 2011 (319-2).
Criminal Injuries Compensation Act 2003 (WA). Return to Work Act 2014 (SA).Return to Work Act 1986 (NT). Victims of Crime Act 2001 (SA).
Victims of Crime Assistance Act 2009 (Qld). Victims of Crime Assistance Act 2006 (NT). Victims of Crime Assistance Act 1996 (Vic). Victims of Crime Compensation Act 1994 (Tas).
Victims of Crime (Financial Assistance) Act 2016 (ACT). Victims Rights and Support Act 2013 (NSW).
Workers Compensation Act 1987 (NSW). Workers Compensation Act 1951 (ACT).
Workers’ Compensation and Injury Management Act 1981 (WA). Workers’ Compensation and Rehabilitation Act 2003 (Qld).
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Workers Rehabilitation and Compensation Act 1988 (Tas).
Powers of the Criminal Courts (Sentencing) Act 2000 (UK).
C Books and Chapters in Books
James Edelman (ed) McGregor on Damages (20th ed, Sweet & Maxwell, London, 2018).
Simon France (ed) Adams on Criminal Law – Sentencing (online loose-leaf ed, Thomson Reuters).
Stephen Todd (ed) and others Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019).
D Journal Articles
B J Cameron “The New Zealand Criminal Compensation Act, 1963” (1965) 16 UTLJ 177.Mark Campbell “Due diligence and the Health and Safety at Work Act: a brave new world?” [2016] NZLJ 218.
Mark Campbell and Charlotte Evans “Sentencing under the Health and Safety at Work Act 2015” [2018] NZLJ 112.
Simon Connell “Justice for Victims of Injury: The Influence of New Zealand’s Accident Compensation Scheme on the Civil and Criminal Law” (2012) 25 NZULR 181.
Simon Connell “Overturning the Social Contract?” [2014] NZLJ 314.
Simon Connell “What is the Place of Corrective Justice in Criminal Justice?” (2011) 19 Waikato L Rev 134.
Janet Hoek and Angela Willis “Respondent Understanding of the 1999 Referendum Question on a Reform of the New Zealand Justice System” (2002) 37:2 Australian Journal of Political Science 303.
Julian Roberts “Sentencing Reform in New Zealand: An Analysis of the Sentencing Act 2002” (2003) 36(3) Australian and New Zealand Journal of Criminology 249
E Parliamentary and Government Materials
(4 October 2011) 676 NZPD 21681.(5 March 2014) 696 NZPD 16392.
(8 April 2014) 697 NZPD 16951.
(16 April 2014) 698 NZPD 17350.
(27 May 2014) 699 NZPD 18369.
Accident Compensation Corporation “New client payment rates and interest rates from 1 July” (press release, 20 June 2019).
Law Commission Compensating Crime Victims (NZLC IP11, 2008). Law Commission Compensating Crime Victims (NZLC R121, 2010).
Ministry of Justice Departmental Report for the Justice and Electoral Committee: Victims of Crime Reform Bill (April 2012).
Ministry of Justice Regulatory Impact Statement: Enhancing Victims’ Rights Review (4 July 2011).
New Zealand Government “NZ Superannuation age to lift to 67 in 2040” (press release, 7 March 2017).New Zealand Government “Reparation and ACC entitlements” (press release, 28 January 2010).
Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand Compensation for Personal Injury in New Zealand; Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967).
Victims of Crime Reform Bill 2011 (319-2) (digest).Victims of Crime Reform Bill 2011 (319-2) (select committee report).
Victorian Law Reform Commission The Role of Victims of Crime in the Criminal Trial Process Report 34, August 2016.
Victorian Law Reform Commission Review of the Victims of Crime Assistance Act 1996
Report 38, July 2018.
Government Actuary’s Department Actuarial Tables, With explanatory notes for use in Personal Injury and Fatal Accident Cases, Prepared by an Inter-disciplinary Working Party of Actuaries, Lawyers, Accounts and other interested parties, Seventh edition (1 August 2011).
Ministry of Justice The Criminal Injuries Compensation Scheme 2012 (13 June 2019) (UK).
Ministry of Justice The Criminal Injuries Compensation Scheme 1996 (12 December 1995) (UK).
F Dissertations
Bronwyn Neal “The Triple Lottery” (LLB (Hons) Dissertation, Victoria University of Wellington, 2018).Simon Connell “Justice for Victims of Injury: The Influence of ACC on the Civil and Criminal Law in New Zealand” (LLM Thesis, University of Otago, 2011).
G Unpublished Works
Simon Connell “Community Insurance Versus Compulsory Insurance: Competing Paradigms of No-Fault Accident Compensation in New Zealand” (forthcoming).
Simon Connell “What Sort of Social Contract is the ACC Social Contract?”
(forthcoming).
H Internet Resources
“Criminal injuries compensation: a guide – How do you apply for a payment?”<https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide>.
“Financial Support – Financial assistance for economic loss”
<https://www.victimsservices.justice.nsw.gov.au/Pages/vss/vs_financial_support/vs_f inancial-support-page.aspx>.
Statistics New Zealand “Labour Market Statistics: March 2019 quarter” (1 May 2019)
<https://www.stats.govt.nz/information-releases/labour-market-statistics-march-2019- quarter>.
Statistics New Zealand “ NZ (dot) Stat – Earnings from main wage and salary job by occupation (ANZSCO 2006), sex, age groups and ethnic groups”
<http://nzdotstat.stats.govt.nz/wbos/Index.aspx?DataSetCode=TABLECODE7475> NZ (dot) Stats.
“Weekly payments for Workers Insurance – How weekly payments are calculated”
<https://www.icare.nsw.gov.au/injured-or-ill-people/workplace- injuries/payments/weekly-payments/>.
I Newspaper Articles
“Judges cannot order ACC top-up payments, court rules” The New Zealand Herald
(online ed, Auckland, 25 May 2009).Helen Twose “Kiwisaver: ACC earners miss out on boss top-ups” The New Zealand Herald (online ed, Auckland, 15 May 2016).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/UOtaLawTD/2019/26.html