ACC set to sue Affco for gang shooting in car park

December 18th, 2007 at 7:17 am by David Farrar

NZPA reports that ACC won’t back down with Affco:

ACC and Affco became involved in a long-running battle after Joel Storey, 23, was left paralysed from the waist down from what appeared to be a gang shooting in the carpark of Affco’s Wairoa plant in April 2003.

State-owned workplace insurer ACC said the incident came under the umbrella of a workplace accident and billed the company for $1 million in compensation.

If a gang shooting after hours in a car park is now a workplace accident, then I guess employers are now responsible for all crime related injuries.  Let’s sue the car park buildings for any violence that happens within their premises.

Also let’s think about the responsibility of employers to minimise workplace accidents.  Now if this includes minimising the chance of a gang shooting in the car park, how can the employer  help prevent this?  I guess we need to allow Affco to have its own armed security guards.  Or maybe a guard tower with some snipers.

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50 Responses to “ACC set to sue Affco for gang shooting in car park”

  1. MajorBloodnok (361 comments) says:

    This is why you need a “worst of 2007″ list, David.

    And why ACC needs private competition.

    If you asked the public whether ACC was doing the right thing here, I predict you’d get 95% to say “No”.

    Who is the Minister in charge of ACC, and why are they letting this happen?

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  2. dave (988 comments) says:

    After hours accidents at the workplace are not work place accidents, however according to ACC legislation, accidents that occur at the workplace during meal or smoko breaks are and it is my understanding that this shooting ocurred during a smoko break. Employees get paid for smoko breaks so this person was working and therefore it is a work accident. Thats my understanding anyway. If Tau Henuare got sufficiently injured and had tho have time off work or get medical treatment when Mallard thumped him, he`d be entitled to ACC as well.

    The big problem here is that it is my understanding that AFFCO is an accredited employer, meaning they cover the costs of workplace accidents themselves for a significant reduction of premium – and they probably have an injury prevention person as a staff member.

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  3. dave (988 comments) says:

    .. but so as not to bankrupt business who have high claim costs, wth AFFCO, ther is a million dollar excess, meaning that ACC pays the rest. The fight is over who should pay the first $1m.

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  4. Craig Ranapia (1,915 comments) says:

    Now if this includes minimising the chance of a gang shooting in the car park, how can the employer help prevent this? I guess we need to allow Affco to have its own armed security guards. Or maybe a guard tower with some snipers.

    How about Affco starts putting this question on application forms: “Are you now, or have you ever been a member of a ‘gang’ (definition attached), associated with such a person in any context whatsoever, or believe you would be likely to do so while employed by this company?”

    I suspect the Human Rights Commission, unions and employment lawyers would have a field day, but surely the precautionary principle comes into play?

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  5. Andrew W (1,629 comments) says:

    “After hours accidents at the workplace are not work place accidents, however according to ACC legislation, accidents that occur at the workplace during meal or smoko breaks are and it is my understanding that this shooting ocurred during a smoko break. ”

    This was an accident?

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  6. Pita (373 comments) says:

    No doubt it’s covered in “the law of common sense”

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  7. david (2,556 comments) says:

    It is also complicated a bit by the fact that it happened in the carpark which (by MAF regulation) is outside the secure area of the “workplace” and is, in effect, a public place as it is accessible without restriction from the main road.

    AFFCO may win or they may lose but in the interests of their shareholders they are obliged to challenge ACC if there is something to dispute.

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  8. ghostwhowalks (377 comments) says:

    AFFCO CHOOSE to have a million dollar excess, most other employers only have the first week of pay.
    You are also covered by ACC insurance on the journey to and from work.
    After all you wouldnt make the journey unless to go to work

    AFFCO dont have a legal leg to stand on, thats why they first went the national party to try and get a political result

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  9. david (2,556 comments) says:

    GWW withn your hypercynical worldview you probably have not considered that if they were prudent, AFFCO will have insured their excess and that this challenge is from their insurers, rather than the Company.

    Just a thought if you can get the blinkers off before jumping to conclusions!

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  10. ghostwhowalks (377 comments) says:

    david , nowhere is it said that what you say applies.
    They chose to self insure up to $1 million, did they never think it wouldnt apply.
    Wrong calculation , lets try and offlaod back onto the other insured companies who didnt take this big risk

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  11. barry (1,317 comments) says:

    What this sort of dumb action results in is (as with the USA where everyone is ‘sue shy’) that Affco will get rid of car parks and everyone will have to be searched on entry to the plant and facitlities for tea breaks will also be closed. There will still be time off – but no employer provided facility like tea making etc. After all if an employer is going to be responsible for a shooting in the car park (no accident and the park could hardly be described as a workplace) then close the bloody car park. Let the workers park on the road.

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  12. Lance (2,634 comments) says:

    GWW hates AFFCO because they are a filthy rich faceless corporate and deserve every bad thing that comes their way.
    No other logic or reasoning needed.

    A perfect H1 disciple.

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  13. ghostwhowalks (377 comments) says:

    Actually I was born next door to this particular plant, so I have more connection than you

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  14. Richard Hurst (841 comments) says:

    I will be very interested in seeing ACCs injury prevention initiative relating to avoiding getting shot at work.

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  15. Grant (436 comments) says:

    Ghostwhomissesthepoint says:
    “Actually I was born next door to this particular plant, so I have more connection than you”
    So what GWW? Please explain how a gang shooting becomes an accident. And while you’re at consider this:
    If the shooting had taken place on a council footpath, and that particular council had the same ACC deal, would the council then be liable to the same extent that ACC are trying to prove that AFFCO is?
    G

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  16. PaulL (5,965 comments) says:

    Nice that you have connection. What does that have to do with whether a gang shooting of someone outside on their smoko break should be covered by ACC? AFFCO have an obligation to improve the safety of their workplace, how would you suggest that AFFCO achieve this? If I were them, I would prevent my staff from going outside when on smoko. Of course, the smoking bit of smoko would be pretty hard then…..

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  17. slightlyrighty (2,471 comments) says:

    GWW.

    I was born at Hutt Hospital, that doesn’t make me an expert in the health system.

    Congratulations for the most pointless arguement of 2007.

    By the way, If I was shot on my way to my car after completing work, I would not consider my employer responsible unless he actually shot me. Unless you are in the police or the military, being shot is not an occupational hazard in NZ.

    This action by ACC is nonsensical. I cannot see how this incident can be regarded as a “workplace accident”. How could this have been prevented by OSH? A high visibility vest? That just makes you a better target!

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  18. Brian Smaller (4,012 comments) says:

    “and they probably have an injury prevention person as a staff member.”

    I would hazard a guess that their pervue was telling people how to avoid getting caught in the chain, crushed by a pallet lifter, observing carpark speed limits or being cut with knives. Being shot by gang members probably hasn’t come into it.

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  19. Pascal (1,969 comments) says:

    Nor should it. The employer is not at fault and could not have sensibly prevented this.

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  20. Mark (496 comments) says:

    I don’t see ACC winning this case – anybody in thier right mind are going to say the employer could not have prevented this shooting.

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  21. ghostwhowalks (377 comments) says:

    ACC also covers you on the journey to and from work, the employer cant ‘prevent’ someone else running into the back of your car and putting you off work for a month .

    AFFCO wants it both ways, both self insure and then dump the claim when it gets to much.
    Its called coporate rip off

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  22. tom hunter (4,729 comments) says:

    Similar theme to the argument I was making in the Kiwisaver thread.

    That is, ACC was set up to avoid all that nasty US-style private lawsuit that was starting to emerge in the late 60’s. “No fault” insurance was the cry. Again – a vast public bureaucracy created to avoid the ‘worst excesses’ of the private sector and what’s the end result four decades down the line……

    A lawsuit over who pays, with the implication from none other than the state-owned institution itself, that if they win we’ve all ended up in the same damn place the socialists said we could avoid. A private sector employer who is responsible for what happens on their property and who has to accept fault!

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  23. krazykiwi (9,186 comments) says:

    ah litigation!! i guess my only responsibility these days is to prove that everything else is someone else’s responsibility. it’s a societal death spiral, but the ride down will be great for the lawyers

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  24. Graeme Edgeler (3,283 comments) says:

    AFFCO became an accredited employer, meaning they don’t pay (or pay much reduced – I’m not sure) ACC premiums, but cover the costs of accidents. Basically, it’s privatised ACC – giving employers an incentive to lower ‘accidents’ (which is a term of art – it doesn’t carry its ordinary meaning). The employer pays for the costs associated with accidents, and if they make it so there are fewer accidents, they benefit by saving money.

    This person would qualify for ACC cover from ACC if the company was paying premiums like every other company, so this person qualifies for ACC cover from the company because the company has agreed to provide it to save money.

    No-one is saying that AFFCO is at fault – ACC is a no-fault system. AFFCO just promised, in exchange for not having to pay premiums to ACC, to cover the costs those premiums would cover. If they weren’t up for it, one wonder why they signed up for it.

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  25. Rocket Boy (163 comments) says:

    On the face of it, it would appear that ACC are wrong to claim this as a workplace accident. However things are somewhat complicated by the fact this did happen during work time and on AFFCO’s premises.

    Seems that the next logical step is for the courts to decide.

    I would strongly disagree with Majorbloodnok that this is ‘why ACC needs private competition’ I would think that we are far more likely to see private insurances companies refusing to pay and far more cases ending up in court than with ACC. The ACC system works well, if it ain’t broke, don’t fix it!

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  26. slightlyrighty (2,471 comments) says:

    Rocketboy.

    As this case indicates, ACC could work better.

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  27. toby1845 (194 comments) says:

    Ghostwhowalks: “Actually I was born next door to this particular plant,”

    Born next door? Or dropped in a holding pen by a cow on the way to slaughter?

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  28. krazykiwi (9,186 comments) says:

    toby1854 – kudos. i thought this, but you get the points for posting!

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  29. toby1845 (194 comments) says:

    Grins @ kk

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  30. MajorBloodnok (361 comments) says:

    If a tactical nuke exploded in an AFFCO carpark, would ACC be requiring AFFCO to pay the first $1 million?

    How about a mortar? RPG? Molotov cocktail?

    This is no accident. It is a premeditated criminal action, initiated by some person OUTSIDE the workplace.

    Sue the gang.

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  31. MarkS (76 comments) says:

    As Graeme Edgeler said, the definition of “Accident” in this situation doesn’t come from the Oxford Dictionary, but from the specific legislation. While perhaps we might all think that the law is an ass in this situation, the problem is really the interpretation of the legislation. Unfortunately, I am not a lawyer, so I can’t particularly help… I’d be interested if somebody could dredge up the relevant definition if it isn’t too complicated.

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  32. Adam Smith (890 comments) says:

    I eat meat does that give me a connection?

    Under the GWW Law of Common Sense – indubitably

    It may well be the case that in law ACC are correct, this does not mean that reality prevails.

    From a rational viewpoint this is not a workplace accident in the sense understood by many. Unless of course OSH has a process which covers this.

    Nor, it should be noted is this, as far as I can tell from what I have read is it a question of coverage for the worker, it is a question of which of 2 parties is responsible for the cost – based on what is or is not a workplace accident

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  33. helmet (807 comments) says:

    Ghost who wanks is from Wairoa? No way! Wairoa’s a great place, and people who come from there usually have more sense than that idiot.

    GWW- will you be around Wairoa for xmas? I’d love to pop around to say hi, I’ll be heading up the lake and it would be great to catch up.

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  34. ghostwhowalks (377 comments) says:

    The lake ???
    When i said next to the freezing works it was literally next door.
    The ruling elite went to the lake

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  35. ghostwhowalks (377 comments) says:

    One of the problems is that AFFCO, or the ‘national partys meat & sheep farmers’ didnt own the plant at the time.
    It was owned by the US firm Swift, AFFCO seems to be late comer to the situation.

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  36. gd (2,286 comments) says:

    MarkS as in Alice in Wonderland and also with lawyers “Words mean what I want them to mean”

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  37. MarkS (76 comments) says:

    gd: it’s just the way that the law is written. I’m not trying to defend it. Interestingly, there has been no coverage as to how the law defines a workplace accident and why this qualifies – there has only ever been rolling of eyes at the ridiculous nature of the decision.

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  38. Mickey D (84 comments) says:

    “…. we’ve all ended up in the same damn place the socialists said we could avoid. A private sector employer who is responsible for what happens on their property and who has to accept fault!”

    The reality is this is a private sector employer who CHOSE to be responsible up to a ceiling limit of $1.0m for work-related personal injury claims suffered by its employees regardless of how incurred and whom was at fault. They consciously assumed the risk of injuries the fault of the company, employees and/or any third parties.

    Included within the Act defintion of work-related personal injury is an injury suffered whilst the employee “is having a break from work for a meal or rest or refreshment at his or her place of employment”.

    The legal bunfight will centre on whether the carpark formed part of his place of employment which is not defined within the Act so common law defintion will apply. I’d hate to be the solicitor arguing AFFCO’s case on this one.

    AFFCO staring down the barrel of a $1.0m reimbursment of ACC are clutching at any straws to avoid the cost and are playing the emotive ‘criminal act’ argument to try and gain political traction. You could argue this is a duty owed to their shareholders.

    If this chap had been inadvertently run over by an innocent third party in the car park, this would have just been a scrap between ACC and AFFCO and of no public interest rather than the attempts by many here and in parliament to make this contractual dispute a political football.

    To those so misinformed or ignorant individuals, would you argue that a teller having a ciggie outside the bank and shot in the course of an armed robbery was not a work place injury?

    AFFCO are no doubt counting themselves lucky they didn’t plump for the $2.5m excess option that was available to them!

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  39. PhilBest (5,121 comments) says:

    Oh come on, this is absurd, “1984”, “Animal Farm”, “newspeak”, “ministry of truth” stuff.

    Would all you slimy Marxists get back under your rocks and stop trying to defend the frikkin indefensible.

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  40. Mickey D (84 comments) says:

    PhilBest, what is indefensible? And who’s a marxist here?

    AFFCO contractually agreed with ACC to assume the first $1.0m of risk for ALL injuries occurring at its sites of work regardless of cause and whomsoever may have been at fault.

    This is not a polictical issue or do capitalists encourage breaking the terms of contractual agreements for this is what this little spat is simply about?

    Best you shouldn’t comment on topics you clearly have no knowledge of.

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  41. Mickey D (84 comments) says:

    Oh, PhilBest I forgot.

    Are you an employer? If so, best not complain about the level of ACC levy you have to pay when next year’s rates are set for they may just be that little bit higher if ACC has been unable to recover the $1.0m owed to it.

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  42. Rex Widerstrom (5,349 comments) says:

    Seems to play out this way to me:

    1. the law capturing being shot by a thug as an “accident” is a stupid one (no surprise there, most laws are).
    2. regardless of stupidity of said law, Affco chose to self-insure knowing that, however remote the possibility, they might be liable for something over which they could never possibly be deemed to have any control (see 1 above).
    3. thus regardless of the morality of their being screwed out of $1 million for this, legally they’re liable and should pay up. If they weren’t advised they could be liable for nuclear explosions, RPGs, automatic weapons fire, knifings etc., then they have an issue with, and possibly claim against, their broker and/or legal advisors.
    4. since retrospective law changes to cover one’s ass are all the rage, I can see no harm whatsoever in their trying to enlist political assistance to derive a less costly outcome. In fact the law is clearly an ass and needs changing.

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  43. PhilBest (5,121 comments) says:

    Look, COME ON, are the employers of everyone killed in the Trade Centre Towers Sept 11 2001, “liable” for the harm done to their employees? Or did 11 hijackers have something to do with it that no employer could possibly have foreseen let alone prevented?

    This “make the bastard employer PAAAAAY no matter what” attitude is just plain sickening and is part of the attitude problems that are ruining NZ.

    I am not an employer, I could possibly be one day but I am deliberately not going to be as long as the law is so distorted by small-minded politics of envy and tall poppy thinking, that I could lose the shirt off my back through no fault of my own.

    And don’t kid yourself that this sort of bad incentive structure isn’t filtering through to restrict our economic growth. (which is what lefties fron Marx and Lenin onwards have failed to get their heads around).

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  44. helmet (807 comments) says:

    The ruling elite of Wairoa GWW?

    Look mate, I’ve never seen the mongrel mob up at waikaremoana dude, what are you smoking?

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  45. dave strings (608 comments) says:

    A simple tort really.

    1. AFFCO signed a contract with ACC stating that they were liable for all ‘accidents that occur on company premesis’.

    2. The courts havce ruled that if an idiot drinks two bottles of scotch then gets in a car and drives it into a person at 150 kph it is an accident for purposes of the ACC act

    3. What’s the difference?

    BTW – the legal bills, on each side, are almost sure to be over $1 million by now!

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  46. Mickey D (84 comments) says:

    PhilBest, not sure if you’ll catch up with this note but you are so ignorant on this matter that I can only assume any other comments you make on any other topic are equally myopic.

    AFFCO refusing to pay a sum they contractually agreed to in exchange for a very healthy GOOD monetary incentive, is going to increase the cost of ACC levies to other employers. The bastards!

    Can you get it through your thick little skull once and for all that ‘fault’, ‘liability’, ‘culpability’ has no role to play in the ACC regime whatsoever and thank god for that. And you won’t find a single employer advocating an ‘at fault’ alterantive a la Australia, UK, USA, etc for such approach would increase their operational costs markedly.

    The so called ‘privatisation’ of ACC pushed by NZ employers is not to change the applicable legal system but to introduce compettition to ACC as provider of benefits within the system.

    Do you not think a private insurer of AFFCO would not be chasing them hard right now for reimbursment of the policy excess contractually owed to them? Of course they would be. Or is that OK as an insurer is not a quasi govt dept and thus the Labour party in disguise?

    As to 9/11 we all know whose fault the losses were but who is legally liable to the dependants? Not the terrorists but the airlines. Yes, the airlines are the principal parties in the gun in the eyes of both interantional and US law. If it wasn’t so the dependants wouldn’t be getting a bean. Is that the kind of alternative you prefer?

    Drawing an analogy of a country in terminal decay from this example of an opportunistic and welching corporation is so ridiculous and typical of the rabid right that you so seem to faithfully represent.

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  47. tom hunter (4,729 comments) says:

    Mickey D

    Well I guess this post will be lost amidst the noise of more recent threads but still….

    I only employ myself but naturally pay ACC, and I was the project manager in developing a private-sector claims system in preparation for the deregulation in 1999 – so I pass the “do you know what you are talking about’ test.

    First up, I’m comfortable with ACC and AFFCO fighting this out to decide what can rightfully be called an accident and whether this one is their responsibilty. As you said:

    If this chap had been inadvertently run over by an innocent third party in the car park, this would have just been a scrap between ACC and AFFCO and of no public interest rather than the attempts by many here and in parliament to make this contractual dispute a political football.

    Agreed – but I have not seen anybody argue that the guy was “inadvertently” shot, which, as RexW pointed out, is precisely why this has become political.

    The reality is this is a private sector employer who CHOSE to be responsible up to a ceiling limit of $1.0m for work-related personal injury claims suffered by its employees regardless of how incurred and whom was at fault.

    And Graeme Edgeler
    The employer pays for the costs associated with accidents, and if they make it so there are fewer accidents, they benefit by saving money

    Quite true but a half-truth. The whole point of the ‘preferred employer’ scheme in ACC was not just as a sop to big industries for re-nationalising the whole scheme in 2000, but to try and remedy one of the biggest complaints about the old system – that large employers had little incentive to focus on reducing accidents because it made no difference to what they paid ACC. Not to mention that ACC (and left wingers) finally realised that accident rates could not be sufficiently reduced via inspectors, rules and prosecutions.

    In short, even a semi-privatised system results in lower costs and fewer accidents than the classic nanny –state approach of the original scheme, even if AFFCO win this case and “screw” ACC for $1miilion! The even shorter version is that the scheme does not just save money for such companies but for ACC, and by definition for the rest of us.

    GE again
    No-one is saying that AFFCO is at fault – ACC is a no-fault system. AFFCO just promised, in exchange for not having to pay premiums to ACC, to cover the costs those premiums would cover. If they weren’t up for it, one wonder why they signed up for it.

    Perhaps because their lawyers are not sharp enough? When AFFCO signed on their managers would have felt that they could do a better job of doing that than ACC could. However, they surely did not think a worker being deliberately shot in the carpark was an ‘accident’ that they could do anything about or even should do anything about.

    Would it have occurred to you as an employer? Really?

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  48. tom hunter (4,729 comments) says:

    Oh yeah – really cannot let this go without comment either:

    Drawing an analogy of a country in terminal decay from this example of an opportunistic and welching corporation ………..

    Okay – some allowance perhaps for a kneejerk reaction to PhilB’s full-blooded attack – but really this is a very stupid thing to say and so “typical” of the rabid left in their general kneejerk attitudes towards the USA.

    This “terminal decay” nonsense has been endlessly recycled for the last four decades. It’s been pushed primarily by the left but also some right-wingers unhappy about the ‘perverse’ influence of US culture – Muldoon effectively said the same thing in one of his mid-70’s books and Michael Laws repeated it in his mid-90’s autobiography (and that following a State Department sponsored tour of the country – waste of US taxpayer dollars there).

    If it was not the Soviet economic miracle under Kruschev it was Vietnam and Watergate, or the Oil Crisis of ‘73 or the Japanese takeover of US industry in the 1980’s or a resurgent USSR under the dynamic leadership of a young Gorbachev, running rings around an aging, senile moron of a president (read “Landslide” for an apt portrayal of the conventional wisdom of 1988) – and now it’s the Chinese. I’d have thought the theme would have grown tired by now but the message just keeps repeating: somehow, someway, the US economy, it’s military, the entire rotten society is going to be humbled!

    In the meantime the US continues to roll forward and over the boogeymen, just as crazy and weird and dynamic as ever.

    And on that note – just to return to the theme of this thread – when I moved to the US in the mid-80’s I believed all that crap about the great mass of lawsuits screwing over the US and congratulating my country about our brilliant alternative of the ACC. Until I noticed the amount of safety features in US workplaces, including my first encounter with vehicles that beeped while reversing, something that did not exist in NZ at the time but which had become pervasive in the US – thanks largely to lawsuits.

    It took a while longer to see the enormous difference between the opening bids of such lawsuits (which make such small but perfect article titles in NZ media – sub-theme being how stupid US society is) and the eventual awards, not to mention the awards following appeal.

    It took even longer for me to recognise NZ’s awful workplace death stats as compared to the US (at least up to 98/99) and to understand that we were so much worse precisely because we had, as ever, placed our faith in a large government bureaucracy to do what hundreds and thousands of citizens, with lawyers at their side, could have done more effectively themselves. One can only speculate now about the overall societal costs of such an approach, but when the comparison is so easily made that our system is better I wonder whether any costing is attempted for all those additional, unecessary deaths and injuries over the decades – or is it just a matter of summing up the ACC compensations?

    And you won’t find a single employer advocating an ‘at fault’ alterantive a la Australia, UK, USA, etc for such approach would increase their operational costs markedly.

    Ah – the love-hate relationship between the Social Democratic Left and big business. Have you ever asked yourself the question of whether it is a good idea for small business’s like mine to subsidise the ‘operational costs’ of other, larger and more dangerous businesses? Have you ever asked yourself whether a state-owned system can actually be said to be ‘working’ when it artificially lowers the operational costs of such businesses or why that is a good thing?

    Translating back to the US – will any of the left-wing advocates of a nationalised healthcare system in that country ever ask themselves why the likes of General Motors are so supportive of such a scheme nowadays? You think Hillary or John Edwards will spew big business hatred out of one side of their mouths while sucking in donations from such businesses who are desparate to reduce the health care portion of their costs after decades of having insanely non-incentivised internal schemes?

    Think the average US taxpayer will get screwed by the very politicians who told them they’d protect them from big business?

    But this simply brings me back to my original point on this thread – ACC is simply another vast, leftist, bureaucratic monster that has eventually had to become more like a private sector insurer with competition (”…introduce competition to ACC as provider of benefits” – your words I believe) and lawsuits that are precisely about ….‘fault’, ‘liability’, ‘culpability’….., in order to deliver better results after decades of relative failure.

    Which should cause people to ask themselves whether we would have been better off in the first place with such a government-owned group as just one provider amidst many and the retaining of such incentives in the hands of private individual citizens.

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