ACC seeks legal advice over whether cover is available for gastro outbreak
ACC is seeking legal advice on whether it should be covering claims filed after the Havelock North gastro outbreak.
A spokesman said the corporation had identified five claims relating to the campylobacter outbreak in August last year.
"Four were declined, and one accepted because it was for a physical injury to someone with the gastro bug," he said.
"We are seeking legal advice as to whether the infringements of regulations admitted by the councils – as outlined in the Government Inquiry report – can be considered criminal acts under our legislation. ACC can only provide cover for claims which meet criteria outlined in our legislation, and the Accident Compensation Act says the ingestion of bacteria is not considered an accident unless it is the result of a criminal act," he said.
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"If need be, we will re-consider the declined claims once that legal advice has been received and considered," he said.
A lawyer who specialises in ACC cases, Warren Forster, said the fact that Hastings District Council paid the infringement fines issued by Hawke's Bay Regional Council meant that a sufficient level of offending had been established.
Speaking after the release of the Havelock North Drinking Water Inquiry findings this week, Forster said it was now clear to him that claims could be laid.
The outbreak made some 5500 of the town's 14,000 residents ill with campylobacteriosis. It put 45 in hospital and has been linked to three deaths.
The regional council originally decided to prosecute the district council. The prosecution, which delayed the Government inquiry and angered the inquiry panel, was later withdrawn and replaced with the issuing of two infringement fines of $500 each. The fines were paid before Christmas.
"Infringement notices are the lowest level criminal offences, but they're still criminal in nature. They're designed to show some level of responsibility and the council's accepted that," Forster said.
"The Solicitor-General's guidelines require a prima-facie case to be made out in the evidential test. The infringement notice itself meets the test and that's basically the end of it in my view, and the ACC now needs to decide whether that's the case and whether they'll make it work," Forster said.
The sort of things that might be covered by a successful claim could include doctor's visits and ongoing treatment.
"Those who developed Guillain-Barre Syndrome would need cover for that and possibly more significant entitlements such as lifetime compensation for impairment," he said.
"These are things ACC would need to consider on an individual basis if they grant cover," he said.
The panel identified several failings by the Hastings District Council, Hawke's Bay Regional Council and drinking water assessors.
Panel chair Lyn Stevens QC said the outbreak "shook public confidence" in this fundamental service of providing safe drinking water and it raised "serious questions" about the safety and security of New Zealand's drinking water.
The district and regional councils did not directly cause the outbreak, but their "dysfunctional relationship" and their lack of co-operation resulted in a number of missed opportunities that may have prevented it from occurring.
The regional council failed to meet its responsibility to act as the guardian of the aquifers under the Heretaunga Plains, he said.
The district council "failed to embrace or implement the high standard of care required of a public drinking-water supplier", particularly in light of a similar outbreak in the district in 1998, from which it appeared to have learned nothing.
The council's mid-level managers especially failed, Stevens said. They delegated tasks but did not adequately supervise or ensure implementation of requirements. This led to unacceptable delays in developing the council's water safety plan which would have been "fundamental in addressing the risks of the outbreak".