ACC Confirms Hawke's Bay Gastro Decline Decisions

Released 30/11/2017

ACC today reconfirmed its decision to decline seven claims related to the Hawke’s Bay campylobacter outbreak in 2016.

One claim relating to the outbreak was accepted because it was for a physical injury to someone with the gastro bug, which was caused by the contamination of Havelock North’s drinking water supply.

Campylobacter is a bacterium that causes gastrointestinal illnesses.  ACC declined the claims on the basis that under section 25 of the Accident Compensation (AC) Act, the ingestion or inhalation of a bacterium is not considered an accident unless it is the result of a criminal act.

Earlier this year, after a Government inquiry revealed that a local council had paid a fine for infringing regulations, ACC decided to look in detail at the way it interpreted section 25 of the AC Act, as ‘criminal act’ is not defined by the legislation. It also wanted to consider the broader policy question of how it should go about deciding that a ‘criminal act’ had occurred in any given situation.

ACC has now clarified its policy to be that a ‘criminal act’ in terms of section 25 has occurred where a Court or similar body finds a criminal offence has taken place. There are some limited exceptions to this, such as where it is obvious a criminal act has occurred but the perpetrator can’t be found.

As a result of the policy clarification, ACC confirms it is unable to extend cover to the declined Hawke’s Bay gastro claims because under section 25 of the AC Act a criminal act has not occurred.

ACC's policy guideline

This is a general guide to ACC’s approach to considering claims for cover for ingestion or inhalation of a virus, bacterium, protozoan or fungus. Each application for cover will be considered on its own merits.

Cover under the Accident Compensation Act 2001

The Accident Compensation Act provides cover for personal injury caused in a number of circumstances, including personal injury caused by accident.

The kinds of occurrences considered to be an “accident” are listed in section 25 of the Act.

Meaning of Accident

Section 25 provides that an accident does not include the inhalation or ingestion of a virus, bacterium, protozoan or fungus unless the ingestion or inhalation is the result of a criminal act of a person other than an injured person.

What is a criminal act?

The Act does not define what a “criminal act” is, and the meaning has not been considered by the Courts in an ACC context.

The Crimes Act 1961 (s.2) defines “criminally responsible” to mean that a person is “liable to punishment for an offence”.

ACC interprets a criminal act to be an offence under any New Zealand legislation for which a person can be prosecuted and convicted.

How can ACC be satisfied that a criminal act has occurred?

To decide if cover is available under the Act for the ingestion or inhalation of a virus, bacterium, protozoan or fungus, ACC has to be satisfied that:

  • a criminal act has occurred AND
  • that act has resulted in the ingestion or inhalation of the micro-organism, causing personal injury.

A finding of “a criminal act” can have serious implications for the reputation of the person who committed the act. ACC has no power to investigate or compel the giving of evidence to establish whether offences have occurred under legislation administered by other agencies, or under the general law.

ACC cannot be satisfied that a criminal act has occurred unless:

  • a person has been prosecuted and convicted of the offence; OR
  • an act has occurred that is clearly criminal in nature (such as where a person has deliberately contaminated food or water for an injurious purpose) but a perpetrator has not been identified or has been identified but is not prosecuted or convicted only by reason of establishing a defence such as mental illness.
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