Did you hear the one about the man who ate a pie in which there was a sliver of metal about a matchstick long? It caused severe stabbing pains in his stomach and he needed an operation to have it removed.
He has ongoing dietary and digestive issues which have compromised his quality of life and his ability to maintain physical fitness. This is sad, especially as he is quite a young man.
The New Zealand Food Safety Authority took a prosecution against the baker in the Alexandra District Court and the Judge awarded the victim $6000 reparation for emotional harm. The effect of the decision is to extend fault based awards of damages into areas which are rightly covered by ACC.
This is bad because decisions regarding the coverage and design of ACC are for Parliament to make, not the Courts, and over 15 years ago Parliament abolished lump sums under ACC for pain and suffering and emotional damage. If the man had swallowed a chip off a plate at home, he would have the same ACC cover, but no $6000 award.
Employer bashing and heaping costs on employers on the basis that they must be rich or able to pay insurance (without realising that they are going to recover those costs somehow) have underpinned a number of measures over recent years. The insidious spread of civil damages through criminal proceedings so prevalent in Occupational Safety and Health cases is now spreading to retail sales.
The pie maker had been in business for 25 years and had no previous incidents. The metal in question had sheared off from a can opener which had a nick in the blade.
It is clear from the sentencing notes that the Food Safety Authority regarded this as a test case because it had not charged any other bakers who have had instances with similar can opener blades. The judge took up the call, and decided to make an example of the pie maker.
Until this particular incident it was not industry practice to test the blades of can openers.
The Food Safety Authority reports the judge as saying that the penalties under the Food Act are archaic. Maybe; but the Act has been amended five times since 1981 so the lawmakers have had plenty of opportunities to change the penalties if they want. Indeed, they did increase the general penalty by 300 per cent in 1996.
Significantly, the judge did not mention this in his sentencing notes nor impose any fine, however “archaic”, but instead imposed all the penalty by way of reparation and costs; perhaps because there can be insurance for reparations, but not for fines?
Where does the Court get the idea that insurance is “free” to the insured and society? No one seems to have taken account of how many pies the pie maker will have to sell to generate the $6000 to pay to the victim; nor how much more he and every other baker and pie maker in New Zealand will be charged by way of premiums to cover the additional risk created by the Court.
Worse, there are now reports of at least one judge holding that if reparations are paid by an insurer then the fact of insurance means the fine can be greater. So, be prudent and insure for a potential liability, and the Courts will punish you for your prudence.
What this really shows is that criminal proceedings are not the place to determine what used to be civil proceedings based in negligence.
The muddle is perhaps not surprising. Common law damage actions for personal injury were abolished in 1974 so no local lawyer, or judge, with less than 30 years’ standing, can credibly claim to have any training or experience in personal injury damage cases.
Last year, a symposium in Auckland celebrated the 40th anniversary of the Woodhouse Report. Maybe it is time for it to be read by the next generation of decision makers?If we are going to reintroduce personal injury damages awards backed by insurance, and all the costs that entails, then surely it is for Parliament, not the judiciary, to overturn the Woodhouse Report and the no-fault ACC regime that followed it.
Such matters are beyond the scope of the Courts and should be left to Parliament where the public can make submissions and where the issues can be debated by our elected representatives.
The views expressed here are those of David Cochrane, and may or may not be shared by clients of the firm or others within it.