News Item

Research carried out by a team of researchers in partnership with Acclaim Otago (Inc) has found serious barriers to access to justice for people challenging ACC decisions through the court system. This research was funded by NZ Law Foundation and produced in collaboration with the University of Otago Legal Issues Centre.

The report, entitled “Understanding the problem: an analysis of ACC appeals processes to identify barriers to access to justice for injured New Zealanders”, has been delivered to the Minister for ACC, Hon Nikki Kaye, for discussion and comment.

The lead author, Mr Warren Forster, says the report examined more than 500 written decisions of the District Court, High Court and Court of Appeal that were decided between 2009 and 2015. The group’s aim was to identify barriers to access to justice faced by people seeking to dispute ACC decisions through the statutory dispute resolution process in the courts.

The just released research report shows that people disputing ACC decisions lack the resources required to present an arguable case. It found that claimants were not getting access to justice, and that reform is needed to address these barriers:

1. Insufficient access to the law, including to publicly available legal information, to court decisions often not using the ACC statute or other similar cases, and to basic protections under the ACC legislation;
2. Getting access to evidence was often difficult, including issues with obtaining relevant medical evidence and the lack of fair principles of evidence law;
3. Access to legal representation in the form of an experienced lawyer to defend the claimant’s interests and test ACC’s arguments; and
4. Claimants encountering the sense of not “being heard” and the feeling that they were not given a fair hearing by an independent judicial officer based on the evidence and the law.

Impetus for this research came from the authors’ concern about the lack of any real data on the problems with the current process, especially given the proposal to abolish access to the District Court and replace it with strike-out provisions in a new ACC Tribunal.

“Officials were proposing to treat the symptoms of cost and delay, rather than the root causes of those problems: the access to justice barriers that generate inefficiencies,” says Mr Forster.

Otago Law Dean, Professor Mark Henaghan says, “This research carried out by Mr Forster and his colleagues contributes much needed analysis, knowledge and recommendations that will make strong impact on policy development and law reform to help claimants enforce their rights.”

The report has been endorsed by leading practitioners in the ACC jurisdiction, including Peter Sara, John Miller, and Philip Schmidt. The foreword by Court of Appeal judge, the Hon Justice Winkelmann, praised this report as a helpful addition to research about present problems with access to justice.

The authors look forward to a constructive dialogue with stakeholders in the ACC system and to advancing towards a human rights focus for ACC. They understand the Government has already committed to engaging in further consultation concerning issues raised in this report. It is important they engage with injured people under the Convention on the Rights of Persons with Disabilities before introducing legislation to Parliament. The researchers will meet next week with Minister for ACC, the Hon Nikki Kaye.

Law Foundation Director Lynda Hagen says the grant for the Acclaim Otago ACC report continues the Foundation’s support for projects that improve access to the law for disadvantaged groups.

“In addition to this study, Law Foundation funding has backed the production of accessible legal resources for groups that can struggle with navigating the legal system, such as people with intellectual disabilities, the deaf and hearing-impaired, ethnic minority groups, and young people.”

The research report

Radio NZ National interview with Kathryn Ryan on Nine to Noon, Thursday 23 July 2015

The Law Foundation provided funding of $36,967 for this research project