Accident compensation seems to be one of those few areas of legal practice which affects the day to day lives of most people (including clients and their lawyers), yet at the same time is too often passed over as being too complex or uninteresting or otherwise outside the general legal practitioner’s daily diet.
There is a public perception, and one which is held by some lawyers as well, that the uniquely New Zealand “no fault” ACC scheme means it is a “no litigation” scheme. That perception is both wrong and unfortunate.
By way of introduction, we offer just five observations as to why it is worth each lawyer knowing something of our homegrown ACC legal system and to encourage you to consider how you may incorporate ACC litigation into the practice of law.
There is no shortage of work
ACC accepts approximately 2 million claims a year, but it declines about 100,000 claims on cover or entitlements each year. Generally each of these decisions is amenable to review and appeal – first by way of an independent review mechanism which hears evidence and legal submissions, and secondly by way of a general appeal right to the District Court. As in general civil litigation, there are alternatives to formal dispute resolution including by negotiation, mediation, conciliation and other forms of resolution. There is scope for representing any or all of the various common participants in the ACC dispute process including claimants, the Corporation, and accredited employers who take on ACC’s claims handling responsibilities. Plus, in more recent times, awards of scale costs have helped to make ACC practice viable at the appellate level.
The legal issues are interesting
Just to take a few recent examples from the courts, boundary issues or questions of jurisdiction often arise because the Accident Compensation Act 2001 contains express ouster clauses (known as the privative provisions). This can lead to significant public law arguments about whether a person is able to resort to the general courts (such as by way of judicial review), and international questions about extra-territoriality have also recently arisen. Questions about the legal meaning of the difficult concept of “causation” often also arise (as in what standard applies and what evidence will meet that standard), and it almost goes without saying that close attention to the principles and application of statutory interpretation is omnipresent as ACC is a creature of statute. Some of the cases which have made it to the Supreme Court by alternative routes have profoundly affected the substantive rights of claimants. For those with a taste for complex medico-legal issues, treatment injury and work-related gradual process claims offer significant and satisfying challenges.
The medical evidence leads to good witness work
It is almost inevitable that litigation about ACC matters will eventually require medical experts to weigh in by opining on the reports and counter-reports of colleagues from a vast array of medical specialties and across disciplines such as medicine, occupational therapy, and physiotherapy. Debates are common about the relative expertise of highly-specialised consultants who, for instance, may have conducted a remote review of the file, versus the opinions of the general practitioner who has first-hand experience seeing the patient. The strategic decisions that are required to be made about who to call as a witness and when will hone the general skills of any lawyer. Learning about medical terms and procedures offers yet more challenges.
The opportunities for Court appearances are significant
The initial review stage is relatively informal and the rules of evidence are relaxed although not without its difficulties. This makes appearing at this level of this jurisdiction perhaps less daunting for the younger practitioner. The availability of a general appeal to the District Court as a matter of right means further Court advocacy opportunities for the lawyer who has had carriage of the matter from the outset are significant. The availability of further appeals on questions of law provides good appellate advocacy opportunities.
Legal assistance makes a real difference to the lives of ordinary people
The issues that lie at the heart of many ACC disputes are matters directly affecting the good health and ability to earn a living of a claimant. There is substantial public law good that arises from ACC making its decisions lawfully and fairly, albeit within the confines of the Act. Acting in ACC disputes has the potential to provide the client with sound and reassuring legal advice as they navigate what is a complex system in circumstances where a successful result can make a real or life-changing improvement to them. Most unrepresented appellants fail. There is accordingly a real public service component in boosting the ACC bar.
This article was originally published in a booklet prepared for the NZLS CLE Webinar ACC Fundamentals held on 10 March 2021.