I agree with Mamari that "is it worth it?" is a very important question, but so too is "is it even desirable?". It is certainly arguable, and has indeed frequently been argued, that tort law is a positive obstacle to the implementation of effective accident prevention strategies because of the adversary nature of litigation.

Sadly, we don't (yet) have the data to test the rival hypotheses.

By the way, I'd be interested to hear from Nicole what her source is for her reference to NZ's "bottom-of-the-OECD road toll". According to the 2013 Annual Road Safety Report from the OECD-International Transport Forum (IRTAD, http://internationaltransportforum.org), New Zealand ranks mid-table for deaths per 100,000 population (performing better than, eg, the United States) and just below mid-table for deaths per billion kilometers driven (a wee bit below the US and France).  On all measures, the UK and the Nordic countries come at the top of the league tables - which again supports the thesis that compensation/civil liability have little impact on safety (because the Nordic countries all have no-fault schemes for road accidents).

I also have to admit to finding it psychologically implausible that the risk of tort liability impinges on drivers at the wheel. I am a tort lawyer, and I can honestly say that I have never, ever considered my potential liability in damages while deciding whether or not to embark on a particular manoeuvre. I do, however, consider my own safety, the safety of others, and the risk of criminal penalty (eg for breaking the speed limit).

That said, there is evidence that insurance pricing can have some impact on road safety - putting it very crudely, by making it too expensive for young men to drive fast, powerful cars. This is sometimes taken to evidence an advantage for tort over no-fault, but I can't see any reason why similar pricing structures shouldn't be introduced within a no-fault scheme.

One final point, admittedly somewhat mischievous: the IRTAD report (table 3 on p 15) shows that the fatality rate on New Zealand's roads has *plummeted* spectacularly since the introduction of no-fault. In 1970, there were 23 deaths per 100,000 population; by 2011, the figure had dropped by *over 70%* to just 6.5! Cast-iron evidence, eh?

Cheers
Ken

---

Von: Mamari Stephens [Mamari.Stephens@vuw.ac.nz]
Gesendet: Freitag, 23. August 2013 06:41
An: Nicole Moreham; Neil Foster; Kylie Burns; Ken Oliphant
Cc: Richard Wright; obligations@uwo.ca
Betreff: RE: NZ accident system on A(ustl.)BC

Greetings all. some interesting points of discussion re ACC!  I would only ask in response to Nicole's interesting suggestion about suing tortfeasors is how such a "half-way house"  reintroduction of fault to a no-fault system would then solve some of the perceived 'evils' that the scheme was supposed to get rid of; namely the cost and complexity of determining fault beyond causation. (OK, now borne by the Crown, but costly and complex nonetheless)?  I can see the benefits, but I wonder if it would be worth it...I'm sure there are other points here, but my time has been truncated by a screaming three year old...kia ora!

Māmari Stephens | Senior Lecturer and Project Co-Leader: the Legal Māori Project|      Te Kura Tātai Ture - Faculty of Law| Victoria University of Wellington 

Ph: 64 4 463 6319  Email: mamari.stephens@vuw.ac.nz 

You can access my recent papers on the Social Science Research Network (SSRN) at: http://ssrn.com/author=1592795

---

From: Nicole Moreham [Nicole.Moreham@vuw.ac.nz]
Sent: Friday, 23 August 2013 2:54 p.m.
To: Neil Foster; Kylie Burns; Ken Oliphant
Cc: Richard Wright; obligations@uwo.ca
Subject: RE: NZ accident system on A(ustl.)BC

I agree that this is an excellent teaching resource - thank you for posting it.  

 

There is no doubt in my observation that NZ is free from the zealous health and safety culture that affects many developed nations.  Our bottom-of-the-OECD road toll is a further case in point.  What role accident compensation plays in this culture is impossible to say - NZ has always been a frontier society where risk-taking and physical challenge is valued.  However, there is now an entire generation of NZers (including me) who have never seen a parent, friend or neighbour face a civil claim for injuring someone in a car, in a workplace accident or otherwise.    Most New Zealanders regard this with pride - there is undoubtedly something civilised about universal compensation - but it is difficult to believe that it does not affect safety attitudes.  I was stuck on my return from 7 years in the UK, how rarely one hears the word 'negligent' here.  'Accidents', however, are everywhere.

 

Mightn't one answer be, then, to give the Accident Compensation Corporation the right to sue tortfeasors?  That way both deterrence and universal compensation can be retained.  Government would also surely welcome the chance to claw back some of the costs of the scheme.  Underfunded regulators might welcome it as well. 

 

Regards,
Nicole

 

Dr Nicole Moreham
Associate Professor

Faculty of Law, Victoria University of Wellington
PO Box 600, Wellington, NEW ZEALAND

---

From: Neil Foster [Neil.Foster@newcastle.edu.au]
Sent: Friday, August 23, 2013 12:12 PM
To: Kylie Burns; Ken Oliphant
Cc: Richard Wright; obligations@uwo.ca
Subject: Re: NZ accident system on A(ustl.)BC

Dear Colleagues;

Thanks to the 2 Richards for noting this, I will definitely be noting it for students. I appreciate what Ken says about the limits of anecdotal evidence, (and thanks Kylie for the link to some other NZ stuff) but it is interesting reading the recent critique of the NZ Workplace Health and Safety system where one of the comments of the committee is about a lack of adequate "motivation" for employers. They identify a lack of resources for regulators, and other factors related to the criminal legislation, but notably absent as far as I can tell (from just looking at the Executive overview) is any analysis of the long term impact of the abolition of tort claims for negligence. I think the jury is still very much out on the impact of the law of negligence as a deterrent, but I suspect the effect is more than the current academic consensus (which seems to be "none"). The whole area of "dangerous recreational activities" (which is the topic of the video) is a matter of complexity in NSW and some other places in Australia where our Civil Liability Act makes it almost impossible to sue for an "obvious risk" of a "dangerous recreational activity", but the drafting of the laws seems to sweep up a number of situations where it seems that actions should still be available.

Regards

Neil

 

 

Neil Foster
Associate Professor,
Newcastle Law School;
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
MC177, McMullin Bldg
ph 02 4921 7430
fax 02 4921 6931

http://www.newcastle.edu.au/staff/profile/neil.foster.html

http://works.bepress.com/neil_foster/

http://simeonnetwork.org/testimonies/119/Neil_Foster








>>> On 22/08/13 at 6:31, in message <CAJ7-YLEvvKNOJa3au_H0Gk5tsHenkgU6orWx8QoqFvmyZdkuiA@mail.gmail.com>, Kylie Burns <k.burns@griffith.edu.au> wrote:

For those who might be interested more statistics on New Zealand accident and injury rates are available at http://www.stats.govt.nz/browse_for_stats/health/injuries/serious-injury-outcome-indicators-reports.aspx.

Kind Regards

Kylie

On Thu, Aug 22, 2013 at 6:00 PM, Ken Oliphant <ken.oliphant@oeaw.ac.at> wrote:

Interesting stuff, Richard, thanks for drawing it to our attention.

It's hard to know what to make of anecdotal evidence such as this, and there is a risk that it could be used to draw conclusions that aren't warranted by the proven facts. (In which context, I recall the American law review article that found that New Zealanders' lax attitudes towards safety was demonstrated by the playing of rugby without helmets and body armour...)

I would be interested in hearing more of what on another website is called the 'major study' conducted by the academic interviewed (Susan Watson - a company lawyer, it appears). I can't track down anything published by her on this topic at all.

Workplace health and safety has in fact been a very significant issue in New Zealand in recent times, though it appears that Watson's statement that "New Zealand has four times the rate of workplace fatalities than the UK and twice the rate of workplace fatalities than Australia” is open to serious question. One problem is that most other countries under-count occupational fatalities in comparison with New Zealand, which derives very comprehensive data from its accident compensation system. A recent government-commissioned report makes interesting reading on this (http://www.hstaskforce.govt.nz/index.asp; and see especially the working paper on the international comparison of workplace fatal injury rates).

Even if it were to be proven that New Zealand compares badly internationally, it wouldn't follow that the accident compensation system is to blame. The Nordic counties have (apparently) very low occupational fatality rates, but also have no-fault compensation for work accidents.

---

Von: Wright, Richard [rwright@kentlaw.iit.edu]
Gesendet: Donnerstag, 22. August 2013 01:55
An: obligations@uwo.ca
Betreff: Fwd: NZ accident system on A(ustl.)BC

Interesting take on safety incentives in NZ.

---------- Forwarded message ----------
From: Richard Peltz-Steele <rpeltzsteele@umassd.edu>
Date: Wed, Aug 21, 2013 at 4:53 PM
Subject: NZ accident system on A(ustl.)BC
To: tortprof tortprof@chicagokent.kentlaw.edu

Greetings and happy new academic year, torts profs.

Some of you might, as I do, infuse a bit of comparativism into your torts class. You might like to use parts of this nifty video I just came across from Australian Broadcasting Corp., about ten months old now, linking the New Zealand adrenalin industry with the NZ accident compensation system. Great stuff on deterrence. The legal parts kick in especially at about 21 minutes. There's a transcript, so you can get a feel for the whole thing.

http://www.abc.net.au/foreign/content/2012/s3621762.htm

rick jps

Richard J. Peltz-Steele
http://ssrn.com/author=625107
Professor, UMass Law School
333 Faunce Corner Road
North Dartmouth, Mass. 02747 USA
+1 508-985-1102

--

Dr Kylie Burns

Senior Lecturer

Griffith Law School

Griffith University

Nathan QLD 4111

0737353642

K.Burns@griffith.edu.au