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11 April, 2019 | Smith and Partners
Traditionally, ACC claims have been capped at 80% of income when unable to work because of an injury. The shortfall could not be claimed. This might be thought to be unfair. Recent legal developments make it possible to bring a claim for that shortfall.
In March 2016, Kiranjit Singh was working for a large commercial vegetable growing organisation. He had been tasked with transporting a harvester from Huntly, Waikato to a farm in Karaka, south of Auckland. Before Mr Singh started work, the ‘bin filler’ attached to the harvester had been raised from horizontal to vertical in preparation for transport. When Mr Singh arrived at the farm site, he loosened the chain and webbing straps that secured the bin filler. The bin filler fell from vertical to horizontal, striking Mr Singh on the back of the neck. He was knocked to the ground and lost consciousness. As he was unaccompanied, he was not discovered until three and a half hours after the accident, after his wife had raised concerns about his welfare.
This workplace accident had severe consequences for Mr Singh. He suffered from tetraplegia – severe paralysis – and traumatic brain injury. He needed 24-hour care. He was unable to walk and was entirely dependent on his wife and health nurses to care for him. He was unable to complete even the simplest of tasks himself, such as turning over in bed without assistance. His wife had to stop working to care for him. There was very little prospect of recovery. He and his wife had ambitions of buying a house and having children. He hoped eventually to run his own business. He said his life had totally changed. His wife said she missed everything about the time they had lived as normal people.
Charges were brought against Mr Singh’s employer under the Health and Safety at Work Act 2015 (“HSWA”). 
In the case of Wai Shing, the District Court held that Mr Singh could claim in respect of the shortfall. The Court said a 2014 amendment to section 32 of the Sentencing Act 2002 (“the Amendment”), meant that it was possible for a victim to bring a private prosecution under the HSWA for recovery of compensation including, and not necessarily limited to, the 20% shortfall not covered by their ACC entitlement. It said the clear intention of the Amendment was to allow victims of crime to claim the shortfall, provided that the regulator (either WorkSafe, Maritime New Zealand or Civil Aviation Authority) did not intend to take prosecution action in respect of the same incident. Mr Singh was awarded $226,300 in respect of the 20% ACC shortfall.
In effect, the Amendment overturned the Supreme Court’s decision in Davies v New Zealand Police  NZSC 47. In Davies, the Supreme Court had held that sentences of reparation cannot be made in respect of any consequential loss or damage where the victim already has some entitlement under ACC, even if the amount payable under the Act does not meet the full extent of their loss. The Amendment removes that restriction and extends a victim’s ability to sue for personal injury in New Zealand.
 Accident Compensation Act 2001 (“ACC”).
 New Zealand Royal Commission of Inquiry into Compensation for Personal Injury Compensation for Personal Injury in New Zealand: “Report of the Royal Commission of Inquiry” (Government Printer, Wellington, 1967) (“Woodhouse Report”).
 Brightwell v ACC  1 NZLR 132 at 139-140 per Cooke J (CA); Queenstown Lakes DC v Palmer  1 NZLR 549 AT 555 PER Thomas J (CA).
 It should be noted that Mr Singh’s employer offered a full apology and was willing to pay reparation.
 Wai Shing Limited  NZDC 10333.
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