Worksafe attempts to lever greater earnings related compensation for accident victims through Health and Safety prosecutions were knocked back by the High Court; extra compensation is assessed on actual earnings only.
Perceived deficiencies in Accident Compensation has led to a sideways attack; supplementary payments from ‘wrong-doers’ ordered when sentencing after criminal convictions.
Founded in the 1970s, statutory accident compensation left New Zealand in the novel position of barring legal action for personal injury suffered by accident. Instead, anyone injured claims against a statutory insurance scheme: Accident Compensation. As a general rule, ACC earnings related compensation is limited to eighty per cent of pre-accident earnings. The shortfall is a loss carried by those claiming.
Worksafe has been filling this statutory shortfall, using the Sentencing Act after successful Health and Safety prosecutions to get ‘reparations for consequential loss in relation to earnings.’
In 2016, nineteen year old Sophia Malthus was left a tetraplegic after thrown from a race horse when working as a stable hand. She was a novice rider; at the stables to gain work experience, part of a riding course intending a career as a jockey. The owner of the stables was convicted under the Health and Safety at Work Act. He did not make proper enquiry of her experience or supervise her riding.
At issue in the High Court was calculation of the statutory shortfall on her earnings related compensation imposed as a fine under the Act; her actual earnings on the 37 per hours worked weekly, said the owner; the higher figure of the minimum 40 hours per week adult wage, said Worksafe: A difference of $106,000.
Calculation on actual earnings was correct, Justice Powell ruled.
McKee v. Worksafe New Zealand – High Court (15.05.20)
20.082