NZ Election: Repeal HSW, Revive ACC

Our country and people benefit from our fearless active and adventurous nature. As examples, we invented flying before the Wright brothers, we invented bungy jumping, a Kiwi scaled Mt Everest, the All Blacks are the greatest rugby team on Earth, and our country income and image thrives on adventure tourism. We cycle, hike, hunt, climb, play silly games, swim, explore, DIY, dance and consequently combat issues such as a greater risk of obesity and other such diseases, CO2 emissions, and institutionalised helplessness. Kiwis have always been, are, and should be brave, active, mobile, inventive, and adventurous by nature.

This is all at risk. There are two parts to this story: ACC and the Health and Safety in the Workplace Act.

ACC is (literally) a brilliant idea. Rather than having to find someone to blame and sue to cover expensive medical bills, Kiwis and visitors to NZ can live their lives and have adventures and know that the government will get them back onto their feet and into life again (as much as possible) if they get hurt in an accident. No-one wants to get injured – we don’t go out looking for it – but accidents can happen when you get off your couch, and even sometimes when you don’t, and facing your fears to accomplish something awesome is easier when it does not include both the fear of personal pain and injury and crippling financial debt that could drag down your community as well.

It all comes down to who is going to take responsibility for someone’s injury and rehab costs. If you can’t work because of an injury you can’t make the money you need to pay for it, so you have to look for someone else to foot the bill. If the government isn’t going to do it, people then have to think about who will? Insurance has exclusions for physical or perceived risky pursuits: it is not in their interest to pay out for a possible injury in an activity that has a certain level of risk. While they might pay out if someone drives into you, they most certainly would not be covering you for stock-car racing, unless you pay stupid amounts of premiums.

That leaves litigation. The consequence of America’s system is that people will not give someone CPR when they need it, because if they cause any injury (eg like a broken rib, which can happen) they fear they will be sued for the medical costs. This is a reasonable fear: given the costs of medicine in the US (because doctors have to pay so much in personal liability insurance, because they get sued too), there’s a good chance the injured party will need to find someone to blame to avoid financial disaster. Instead, you could be bankrupted just for trying to save someone’s life. If you have people who rely on your money (eg your family) you would be risking their future for a stranger. Not a good incentive to help, and even less incentive for supplying a product or service that can in any way damage someone (eg a hot coffee http://www.stellaawards.com/) without a comprehensive series of warnings and legal waivers. Blame and fear tears America apart. I think you will agree with me that we don’t want this in NZ.

In my (educated) opinion, ACC has more impact on the Kiwi culture than any other government service (eg education, health and police), and this is why I am so surprised that ACC policy doesn’t even get a mention in most parties’ policies. I decide who to vote for based on their attitude to ACC. The government doesn’t really want the cost, but the alternative, allowing people to sue for personal injury like the Americans do, is far worse. How much is the brave community of NZ worth?

We don’t have the right to sue for our medical costs in NZ: we traded-off the right to have ACC. This means that ACC had better cover accidental injuries comprehensively because we commonly have no further recourse. But instead I see ACC being undermined and no rights to sue being re-introduced.

  • Businesses and sports are being levied according to their risk, which is a disincentive to start a business in anything adventurous. If ACC is a government department, created for the good of the country, paid for by taxes, and enjoyed by all equally, why are some ventures penalised by higher costs? Sure, they might have more injuries, but do we imagine they want these injuries, or get them from being more careless or stupid than people in low risk occupations? Do we imagine that we’d be better off without these occupations? Wouldn’t they already be paying more to attract employees? Wouldn’t the levy be better spent to minimise those injury risks?
  • People are now being denied ACC help when the injuries can be blamed on age and existing conditions. While it may be true that a broken limb or spinal injury might not have happened if the person was younger, or hadn’t had a similar injury in the past, or wear-and-tear, it doesn’t change the fact that the injury would not have happened except for the accident. People are living with injuries and costs from accidents because ACC is judging their claims like a commercial insurance provider, where it is in their interest to not pay out. It is not in the countries’ best interest, however. Do we really want to dis-incentivise older and previously injured people from getting off the couch and into life? Are they really that worthless to NZ?

And then the Pike River disaster happened. Somehow the people who ran the mine were not criminally negligent or otherwise legally responsible, and yet NZ (rightly or wrongly) thought they should be, for justice to be properly served. The Health and Safety at Work Act 2015 was passed to law, and WorkSafe Crown Agency created to interpret the requirements to everyday life. The gist of it is, the ‘person conducting a business or an undertaking’ (PCBU) can be held criminally liable if someone is killed or injured whilst participating in the undertaking.

The law and it’s (WorkSafe and layperson) interpretation is having a serious effect on NZ culture. Here is a list of things I have been told about, as someone who does adventure activities:

  1. A kite-boarding teacher shutting up shop because, while they taught safety and had a definite positive motivation for ensuring the safety of the students, they didn’t want to be responsible for the people who didn’t learn fast enough to avoid injury. I’m sure there will be many more such stories. As above, when choosing to help a stranger, why would you do it when there is a risk they could get damaged and destroy your life? There’s a good chance that they were doing enough to satisfy WorkSafe, in the event of an injury, but many people don’t have the time, financial or cognitive resources to study and understand how the new law applies to them specifically, even if they had the inclination. It’s one thing to be willing to patch someone up as a part of your small busy business, and quite another to commit to understanding such heavy legislation and all the implications, and get all the requisite bureaucratic documentation together whenever it’s required.
  2. Schools closing playgrounds and cancelling school camping trips, to protect teachers and supervisors from the legal consequences of a kid hurting themselves. Cotton-wool parenting (Google it – too many studies to list) doesn’t work. If kids don’t have the opportunity to hurt themselves in childhood, they get to their teen lives thinking they can’t be hurt. They also lack physical literacy and resilience, self-confidence and independence, risk assessment skills and good responsible decision making, and opportunities to learn, grow, and earn the trust and respect of their family and peers.
  3. PCBU’s being so freaked out by the Damocles’ Sword of criminal liability they refuse to let risk-based performers do their job… I’ve heard of circus performers being told they cannot do a number of their acts, because of the risk (the risk is what makes it an act!) and in one case a pair of stilt walkers forced to walk half a kilometre around a water feature because the organisers did not want the risk of them walking across a bridge (as if falling off stilts elsewhere is safer). The vast majority of professional circus performers know the risks, and do what they need to to mitigate the risks themselves. Having ignorant PCBU’s dictating or (worse) helping with the safety measures just adds complexity and unknowns to something that is already tricky.
  4. Home businesses having to write up risk assessments and mitigation plans for employees that come to their home – common sense is no longer enough. It is also apparently not enough that the people you are responsible for just sign a waiver – you have to be able to demonstrate that they have been informed of and understand the risks they face and the mitigation of which they need to be aware. We’re holding the bubble-wrap on with rolls of red tape.

We should also keep in mind that there is a theory that adults, when they have reason to believe they can’t be hurt, act with less care and personal responsibility to themselves and others. Legislation that allows people to believe that, in order to protect themselves from legal consequences, a PCBU will have made the activity safe for participants will almost certainly result in the participant taking less care themselves, putting themselves, others, and the PCBU at more risk.

The law was never meant to do this! It was written to ensure that the people behind an incident like Pike River can be made accountable. It was not made to add the fear of explicit legal responsibility for other people onto our shared adventures. It was not meant to undermine the value and liberty we get from ACC by finding someone to blame for our accidents, or cost so much, because while it might incidentally reduce the annual costs to ACC, it will cost businesses around NZ real money in legal and bureaucratic fees and time. It is not supposed to cause conflict between a risk expert voluntarily accepting risk and “reasonably practicable” mitigation and a layperson’s involuntary exposure and perception bias. It is, whether it was meant to or not, destroying undertakings that represent our way of life, heritage and culture.

I will be repealing this law, for the sake of NZ, to enable us all to take responsibility for ourselves on our adventures, and believe in our government safety nets, and bring back our culture of brave, adventurous, fun-loving and caring Kiwis. It would be great if you want to help.

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