These fees, are essentially to allow ACC to deny cover.


Fees paid to consultants working with ACC have more than tripled in the last four years.

The last financial year saw a hefty consultancy bill of over $58 million, according to figures released under the Official Information Act.

It’s a dramatic rise from the $17.5m spend during the 2013/14 year.


A “game changing” court decision to make ACC pay legal costs above a $3000 cap is a major victory for justice, an ACC advocate says.

The Crown entity was required to pay a maximum of $3000 in legal costs for cases it loses, irrespective of the actual fee incurred, since a ruling in 2008. But a new ruling from District Court Judge Grant Powell orders ACC to pay $7500 of one successful claimant’s $8800 costs.

The cap had been a huge barrier to justice for claimants, ACC barrister and researcher Warren Forster said.

Judge Powell’s written decision, released this month, said Sarah Dickson-Johansen won an appeal against an ACC decision to deny her weekly compensation for a back injury in November 2016, which meant she was entitled to have her legal costs paid for by the entity.

ACC offered to pay $3500, which was rejected by Dickson-Johansen. Forster, who was her lawyer, said a reasonable contribution would be $7500 when the actual costs amounted to $8797.50.

The parties returned to court for a decision.

Judge Powell said he considered the wider issue of legal costs for successful ACC claimants as well as Dickson-Johansen’s case.

By taking the case to the court, Forster asked the judge to consider whether Parliament had intended a claimant “bear the financial cost of bringing a District Court dispute in a situation where ACC issues a decision that is clearly wrong”.

ACC’s lawyer said $3500 was a reasonable amount for costs “in the circumstances” as it was “consistent with the applicable principles for the award of costs in this jurisdiction, given the length and complexity” of Dickson-Johansen’s appeal.

Judge Powell decided District Court rules, where costs were based on complexity and expertise, should apply to ACC cases.

In his ruling he said recent research by Acclaim Otago, a support group for injured Kiwis, and a review by Miriam Dean QC had confirmed claimants needed legal representation and there was “much merit” in Forster’s submission that successful claimants “should not be out of pocket at the conclusion of the appeal process”.

“Instead such an outcome would be antithetical to the purpose of the 2001 Act.”

An ACC spokesman said the entity accepted the court’s decision and did not expect it to have a significant financial impact.

“The scale costs framework allows flexibility in appropriate cases and we believe there is a relatively small percentage of cases where costs will be higher than those payable under the former approach.”

Forster said every client he had successfully represented against ACC had paid between $2000 and $15,000 for legal costs with some forced into debt as a result.

The cost of appealing decisions prevented many claimants doing so, even though they might have had a strong case, he said.

ACC has increased the amount it spends on lawyers to fight its corner in recent years.

In the 2016-17 year $2.6 million was spent hiring lawyers outside of ACC, compared to $1.6m in 2014/15.

If clients were not likely to win more than $10,000 in a case, the burden of costs had meant it was not worth while to pursue, Forster said.

“There is a consistent thread in this area of the law that when you take on ACC, even when you win, you lose. The court has held that is not consistent with the purpose of the [ACC] Act .”


This article is very relevant…and wrong. The author doesn’t really understand the purpose of the law. First though, here is the article.


Scientists and lawyers do not get along. There’s a reason for that. Simply put, scientists and lawyers do not think alike.

I was smacked in the face by this reality when I was called into jury duty in 2011. The case involved a car accident, and the standard in Washington State for the jury to decide in favor of the plaintiff is a “preponderance of evidence,” which is a fancy way of saying, “51 percent.” Essentially, a coin toss decides if the plaintiff wins a bunch of money.

The judge asked if any of the potential jurors objected to that. I did. “I’m a scientist,” I explained, “and I need more evidence than that.” So, I was shown the door.*

That experience taught me that scientists and lawyers live in two completely different worlds. Scientists want 95% confidence and margins of error; lawyers want 51% confidence. Scientists want all evidence to be considered; lawyers do everything in their power to dismiss evidence they don’t like. Scientists rely on reports written by experts; lawyers often consider them inadmissible hearsay. At their best, scientists pursue truth; at their best, lawyers pursue the truth, so long as it benefits the client.

These are fundamentally irreconcilable worldviews that are forever destined to be in conflict. And the lawyers are winning.

Will Lawyers Destroy Science?

Consider Mark Jacobson, the climate scientist who is suing a prestigious journal for $10 million because it hurt his feelings. There is good reason to believe that the lawsuit will be dismissed, but not before lawyers have collected a nice fee for themselves. Jacobson’s attorneys and the journal’s attorneys can both make a lot of money arguing with each other, even if the suit never actually goes to trial. Routinely, lawyers are required to solve problems that they themselves created. If something like this were to occur in any other area of life, it would be called racketeering.

Recently, RealClearScience wrote an article that covered a paper published in the journal Case Reports in Gastrointestinal Medicine about how a particular herbal tea was linked to acute liver failure. The maker of the tea threatened to sue RealClearScience, which pulled the article because it didn’t want to deal with a lawyer.

In both examples, the scientific enterprise is collateral damage. The mere threat of a lawsuit can be used to shut down scientific debate. This is deeply troubling.

A Lawsuit-Happy Nation

Unfortunately, there are no signs of such lawsuit abuse stopping. Researchers at Harvard’s John M. Olin Center for Law, Economics, and Business published a report that showed that the number of lawsuits filed in the United States far exceeds those of similar countries:

On a per capita basis, the lawsuit rate in the U.S. is higher than Canada (by 4 times), Australia (3.8x), Japan (3.3x), France (2.4x), and the UK (1.6x).

Beware, science. A lawsuit-happy nation turns its eyes to you.


So far this [new] year, I have filed 4 new cases [application for reviews]. Quite a busy start to the new year.


Most people when they hear about “junk science” assume that plaintiffs’ attorneys are trying to fabricate some pseudo-science to make out a case, usually in the context of a novel class action theory.

But those of us in the trenches know otherwise, that this isn’t the main problem. Junk science, on a day-to-day basis, is far more likely to spill from the mouths of defense experts in routine cases. I showed this a few years ago in a multi-part series dedicated to quickie medical exams by doctors hired by the defense. A three minute exam and presto!  — a finding that the plaintiff either isn’t injured, or that any injuries s/he has were pre-existing.

Some doctors are doing 1,000+ exams per year like this in the service of the insurance defense industry, which is quite the living if you don’t mind sacrificing your conscience.

Today I turn my sights on the biomechanical engineer. This is the person that will generally look at the vehicles in a crash (not an accident), and deconstruct it in such a way to determine that the victim wasn’t really injured by it. Four years ago Justice Arlene Bluth deconstructed that collision deconstruction for one such engineer, essentially showing the bogusosity of it all. (Is bogusosity a word? It should be.)

Last week the Appellate Division (Second Department) weighed in on that subject. And they were no more kind to the defense “expert” than Justice Bluth was.

Dovberg v Laubach was a hit-in-the-rear collision on the Long Island Expressway that pushed the plaintiff’s car into a tow truck in front of her:

The accident occurred when [the defendants’ vehicle] struck a vehicle operated by Scott Ramunni in the rear, propelling it into the rear of the plaintiff’s vehicle. The plaintiff’s vehicle was then propelled into a tow truck in front of her.

The key part of the story was how the plaintiff said that the injuries to her knees occurred — by striking the steering wheel or dashboard.

So far, nothing out of the ordinary, right? But then the defendants said they would produce Dr. Alfred Bowles as an expert, he being a biomechanical engineer and board-certified surgeon. And he would testify “that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic activities.”

And how would Dr. Bowles do that? By looking at the medical records and the depositions.

Really. According to the decision of the appellate court, that was what he would rely upon. Not even an analysis of the damage to the vehicles themselves? Or the position of the body? This is science?

Oh, and some books. As per the decision, Dr. Bowles would also rely upon:

scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields. In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth. [emphasis added]

The trial court permitted this dubious testimony to go forward, allowing him to testify “with a reasonable degree of engineering certainty, [that] the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard.”

A defense verdict resulted on the issue of causation.

But on appeal the Second Department was, shall we say, less than impressed with this testimony. And this was likely the reason:

Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision.

So no one asked the plaintiff how far forward the seat was — which is to say the actual position of the injured driver  — and then the expert testified that it didn’t matter? Distance to the dashboard didn’t matter? One inch and twelve inches are the same? Can you say bogusosity?

After a brief discussion of the long-recognized rule of Frye v United States — in that expert testimony must be based on scientific principles or procedures and is admissible only after a principle or procedure has gained general acceptance in its specified field — the court swiftly deconstructed Dr. Bowles’ testimony.

The court noted that the

“expert disclosure notice simply stated that Bowles analyzed the medical and engineering aspects of the accident. While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard.

The court didn’t use the phrase “junk science,” or bogusosity, but I will. Because that’s the way I read this opinion.  Your mileage may vary but, frankly, I don’t see how.

So the next time you hear about junk science, you should understand and appreciate that, on a day to day basis, this is not some plaintiffs’-side invention.

The essential business model of insurance companies is to collect as much as possible in premiums and pay out as little as possible (while investing the money in the interim). Many insurance companies, and adjusters, and their syncofantic witnesses who profit from this form of testimony, don’t seem to particularly care how that preservation of premiums is accomplished. Or who gets screwed by their process.


View Postmagnacarta, on 02 November 2017 – 08:03 AM, said:

I am interested in the views of members in relation to the following issues relevantly applying to ACC:-

Fraud on a Power – Such an exercise of power as defeats the intention of the person(s) creating it – (Authority is Butterworths Law Dictionary Fourth Edition page 122)

Therefore, is ACC’s exercise of a power against claimants defeating the intention of the Parliament who created the power?

First off, the [Butterworths] dictionary is not an ‘authority’. It provides legal definitions and can certainly be used in argument, but it is not an authority.

The authority from which the definition was taken is likely Vatcher v Paull [1915] AC 372 [1914-1915] All ER Rep 609.

The full principle is: a power exercised for the purpose or with an intention beyond the scope of or not justified by the instrument creating the power. This opens the door to the consideration of the principle of ‘mistake’ and of the correct legal interpretation [and application] of the disputed power created by the instrument. This once again brings one back to the legislation [in an ACC context] and asking what is the correct interpretation of the legislative language.

It does not mean: fraud, as defined by the common law meaning of that term or of any conduct which could be properly termed dishonest or immoral. Therefore your second authority, does not relate to your first issue as this is a criminal application defined pursuant to the Crimes Act 1961 and is ‘dishonest’.

Fraudulent Action – An accused person must act deliberately and with knowledge that they are acting in breach of their legal obligations – (As Per Richmond P, R v Coombridge [1976] 2 NZLR 381,387()

One does not preclude the other, but it is simply incorrect to believe that they are analogous to one another


Useful resource to have, the ACC Bench Book.

Provides the case law that ACC will rely on. This could give a claimant a small tactical advantage when preparing legal arguments.

I’ve only just recently downloaded a copy, so I haven’t been through it in any detail yet. I will start looking at it over the next few days.


I have been in touch with the Ministry of Justice and they are willing to entertain my proposal of ‘distance supervision’ due to the dearth of legal aid providers for ACC in NZ.

I have secured a provider who is willing to provide limited supervision, due to the distance issues.

All that remains now is to put in an application and see if it flies.


After a bit of research, the bad news is that there are only three [3] legal aid providers for ACC in the entire country.

That is a pretty shocking statistic.


30 July 2015 – By Don Rennie

The articles and comments in LawTalk 868 (3 July 2015) highlight only some of the issues arising from Dame Margaret Bazley’s controversial report “Transforming the Legal Aid System”.

The report was intended to overhaul a system described as being open to “abuse by lawyers and defendants”.

The government’s transformation of the legal aid system by disestablishing the Legal Services Agency and rolling its services into the Ministry of Justice, was described by the Associate Justice Minister Simon Bridges as making changes to “ensure the quality of legal advice, and alter the way lawyers are paid to avoid any incentive to keep cases in the system for longer than necessary”.

Although not covered in the Bazley report, the changes to legal aid have had a devastating consequence on legal representation of accident victims who have disputes with the ACC regarding their cover and/or entitlements.

Highly complex

ACC law is highly complex and complicated and only a few lawyers practise extensively in this field. As rightly observed by Liz Bulger: “Eligibility thresholds are so high that there are many in genuine need who simply do not fulfill the criteria required to be eligible for legal aid”.

The result has been that without obtaining funding from legal aid, few lawyers practising in the field of ACC law can afford to undertake cases to ensure that accident victims receive their statutory rights and entitlements.

Simple and straight forward disputes are usually handled by the claimant themselves or by an advocate or friend but experienced lawyers are nearly always involved in more complicated cases like sensitive claims, treatment injuries (medical misadventure), claims for brain damage, long term incapacity, gradual process injuries, occupational diseases, medical and vocational independence issues and other complex issues.

Only a few lawyers take on these cases on a pro bono basis and they do so at great personal cost. Those who do have significant success in overturning ACC decisions.

Claimants are often encouraged to believe that in challenging an ACC decision the review process is relatively simple and straightforward and provides an opportunity for the claimant to put his/her views and arguments before an independent reviewer who will decide the issues in dispute.

What is not understood is that preparation for a review hearing is extremely important. It means, at the very least, obtaining and reading a copy of the complete ACC claim file (which may be in electronic form or in papers filling a wine box or two), ensuring that there is agreement on the facts, reading the statutory provisions (including relevant regulations) so as to understand the basis of the ACC decision, reading the case law, obtaining evidence from relevant witnesses including up-to-date medical reports and usually, specialist medical evidence commenting on the ACC medical evidence and preparing and developing arguments in support of the disputed issues. The claimant may have to pay up to $2,000 or more to obtain a specialist medical report.

Daunting task

Preparation for a review hearing is a daunting task for a lawyer let alone for an unrepresented accident victim who is likely to be suffering not only from the consequences of the injury, but also from frustration with, or lack of understanding of, the reasons for the decision made by the ACC leading to the need for the review application in the first place.

It is important that the case is properly prepared for the review hearing because if the reviewer’s decision is unfavourable and the claimant wishes to appeal to the District Court, without the leave of the Court the claimant has no right to put evidence before the Court on appeal if it was not presented to the reviewer at the review hearing.

Proper presentation of the case is also important because decisions of the District Court have legal precedent value and are followed by other Courts, the ACC, and lawyers, under the doctrine of stare decisis (the decision has authority until overturned by a higher Court).

With fewer lawyers being involved at the review or appeal stage in ACC cases, more and more claimants will be representing themselves without a knowledge of the law or the review and appeal process. Reviewers and District Court judges will therefore have a much more onerous task to ensure unrepresented claimants receive fair and just treatment.

Restricting legal aid for those who have a genuine need amounts, in my personal view, to a denial of access to justice. It would be made even worse by Cabinet proposals to abolish the right to appeal to the District Court from ACC review decisions and establish a new ACC Appeal Tribunal system. If that goes ahead, the right of appeal from a Tribunal decision, which has no legal precedent value, will be to the High Court but only on a question of law. Unrepresented claimants will therefore be further penalised.

The Ministry of Justice website has guidelines about how an unrepresented litigant can bring a case before the High Court but the High Court has less experience with dealing with unrepresented litigants, especially those suffering from injuries about which they want to address the Court but who can do so only on strict questions of law.