New Zealand Law Journal, pp. 608, 1975
5 Pages Posted: 8 Jan 2013 Last revised: 13 Jul 2015
Date Written: 1975
The Accident Compensation Act 1972 is based on a principle of comprehensive entitlement. Eligibility for compensation of those injured in the course of carrying out activities proscribed by the law must be considered against that background. To deprive criminals of compensation is to bootleg fault back into the scheme in derogation of comprehensive entitlement. Such discrimination would be socially unacceptable for the same reasons that negligence was discarded. The effect of ACC provisions is to pay full benefits except in the case of murder and manslaughter and self-inflicted injuries, with a flexible approach where the claimant is actually in jail.
The paper considers policy alternatives available to deal with the problem of compensating criminals. The first alternative suggested is total exclusion of those injured in the course of carrying out an offence. While it is the most obvious approach, it is also the approach with the most glaring weaknesses. It is unacceptable because it would: filter out a potentially large number of worthy claims (as illustrated by a list of examples); reintroduce the doctrine of fault when a main purpose of the scheme is to eliminate it; add to the incidence of criminal disability; provide a fertile field for argument; indirectly deprive families of their interest in the claimant’s compensation; and intertwine objectives of civil and criminal law.
The second option is to select more serious crimes for exclusion. One problem would be finding a consistent mode of selection. It would also be important to ensure that the dependents of those deprived of compensation were not adversely affected. A procedural choice by a prosecutor should not have flow-on dramatic consequences for the social welfare of the individual. Other alternatives would be to enumerate a range of specific offences where conviction would disentitle an ACC claim, or to vary the selective approach by excluding those injured while committing certain types of crime against the police. But the mere fact of conviction as the disentitling event could clearly produce erratic and unfair results. And singling out crimes against the police may serve to add another element of tension to a relationship which by its very nature is not always relaxed.
The third option is to reduce benefits to those injured in the commission of a crime, either by removing the right to lump sum compensation in the case of serious crimes, by substituting a flat rate benefit in place of earnings related payment, or reducing the payment of compensation on some scale related to the term of imprisonment. This still leads to criticism: a severely disabled criminal must still support himself and his family; reducing benefits adds to the claimant’s criminal disabilities in a way which ensures longer than the penalty imposed by criminal law; reduction of benefits takes no account of the position of the offender’s dependents; and a fair method of selecting such offences is still required.
The author concludes that the policy currently implemented is the best policy. He argues that it is for the criminal law process to determine and apply the appropriate penalty; that adding to criminal disabilities is unsound; that even criminals are afforded basic social and economic rights; that provision of compensation does not lessen deterrence; that a criminal may have had a common law action available; that a loss for which compensation is paid is a loss regardless of whether it occurs to a criminal; to exclude some categories of convicted persons will place strains on the criminal process with incentives for plea bargaining; and there is no alternative policy available which is easily defensible in principle and administratively workable. The author concedes that automatic cancellation of an earnings related benefit during incarceration would be justified.
Keywords: accident compensation, ACC, New Zealand ACC, criminal compensation
JEL Classification: K13, K14, K32
Suggested Citation: Suggested Citation