What do we mean by a personal injury system?
“Personal Injury” is the legal name for the system of law that deals with injuries to people. Different legal systems around the world deal with the problems caused by injuries differently.
Some countries have a “fault” based system where the injured person gets help through the courts if their injury is caused by another person’s fault. They usually do this by suing someone. For example if a driver of another car, or the person’s employer or a doctor was at fault, then the fault based legal system should help the injured person. Many people think New Zealand had a “fault-based” system before we developed ACC.
People often think of New Zealand as having a “no-fault” personal injury system because of ACC. This is partly correct. People injured in New Zealand generally can’t sue each other for causing injury. In theory, they should receive compensation and rehabilitation from ACC without the need to show who caused the injury.
But this is only part of the story. People have strong feelings when another person has caused their injury. These feelings are even stronger if it's clear someone knew there was a risk an injury would occur but didn't take action to prevent it. There has to be a way to address these feelings if New Zealand's legal system is going to provide effective access to justice for injured people. In particular, people often strongly want to prevent the same thing happening to someone else in the future.
Understanding the problem
We did research into disputes with ACC that was supported by the New Zealand Law Foundation which we called Understanding the Problem. We identified barriers to access to justice. Some problems related to what ACC did and some problems related to how a person’s injury was caused. These are discussed in more detail in the section about our research reports.
For some people, the problem they had was unrelated to ACC. Instead, they were focused on getting justice from the person who caused their injury.
What people wanted was an independent competent person to look at how they came to be injured and work out:
- whether they were injured because of someone else’s behaviour,
- what that person who caused the injury should do to address this, and
- what needs to be changed to stop this happening to others.
Injured people often want the thing that caused their injury to be fixed so it doesn’t happen to someone else. People want different things, for example:
- sometimes people want public education or education of particular people to stop the same thing happening to others,
- sometimes people want the person who caused the injury to be held accountable or be blamed or punished.
We think that effective access to justice means something more than just getting assistance from ACC. People want to feel that they have been heard and listened to and to believe that something will be done to address whatever it is that caused their injury to prevent it happening to others.
Solving the problem
We found a lot of organisations were actually responsible for focussing on justice, blame, accountability and prevention, however they did not work together very well. People were getting very frustrated and falling through the cracks.
Over time, our system for dealing with injury is closer to “limited fault” than “no-fault”. Our society has recognised that sometimes we need organisations to help us understand how and why someone was injured. That’s important for preventing the same injury happening again.
There have been more and more of these organisations over time. This means, for example, that organisations like Worksafe, the Health and Disability Commissioner, the Police, the Medical Council, Local Governments, and the New Zealand Transport Agency have injury prevention functions. We call this New Zealand’s Personal Injury System.
People also have disputes and difficulties dealing with these big organisations in relation to injury management and injury prevention. They need things like the Courts, the Ombudsman, the Privacy Commissioner, the Human Rights Commissioner, the Health and Disability Commissioner, and the Minister for ACC to help them resolve those disputes.
We say that if we are going to improve access to justice, we need to stop looking only at ACC and start to think about the wider system. We do not think there is enough oversight or coordination between all of the different working parts of the system.
We identified several ways to do this in our research called Solving the Problem.
What we found is that New Zealand needs to have a Personal Injury Commissioner that is separate to ACC. The Commissioner needs to lead and coordinate the Personal Injury System and provide oversight and help people navigate this complex system.