The tangled task of unravelling injustice

Parliament has in the past week been expending much energy and hot air perpetuating an injustice. But could it have done differently?

Here’s the injustice. Had erstwhile ACC minister Ruth Dyson that fateful night last year crashed while driving over the alcohol limit and suffered a work-impairing head injury she would have received a state benefit (ACC) related to her six-figure income.

But had she suffered a work-impairing stroke as a result of too many late night tipplings, she would have got a social security benefit — a subsistence income.

Injury and illness, both happenstances of everyday life, divide the unfortunate between the luckily unlucky and the unluckily unlucky.

This is a legal legacy. An injury caused by someone else — for example, a negligent employer — was a “tort”, a wrong, for which the victim could sue for compensation and damages.

But there was no one to sue for illness (unless caused by work). There was no tort. The state eventually stood in with social security.

Then in 1973 politicians nationalised injury torts, by then erratic and unjust. We got ACC (accident compensation).

Logically, if the state was to look after both injuries and illness politicians would have treated both alike.

But ACC was handed down by a royal commission.

Royal commissions are headed by judges, in this case Justice Owen Woodhouse. But — as both Greens and biotechnologists have found out in different ways from the findings of the Royal Commission on Genetic Modification and the government’s take on those findings — judges are trained to adjudicate on what is set before them and to do think linearly, from past precedent. The few judges who think laterally — for example, Lord Cooke — are legal outsiders.

The precedent for Woodhouse was legal compensation for loss of earnings. Ergo, the system of quasi-earnings we have today.

If instead he had seen it as a social issue of income sustenance and thought laterally, the precedent would have been social security — a flat-rate payment.

But that would have created a new injustice. Workers and those injured by the actions of others would have got less than before. And even in those expansive days, when even conservatives thought the state could do more and more because there would always be more to pay for it, the way out of that injustice, earnings-related illness benefits, were not thought feasible.

So we got a fiction, a “social contract”. Workers allegedly traded off their chance at a lump sum through the courts for weekly payments from the state, which taxed employers (in place of the insurance they used to buy).

Workers did no such thing, actually. This was an act of public policy by politicians, not a “contract”, much as the word has been bandied around in Parliament this past week.

In any case to call ACC a “social contract” misappropriates the language. A “social contract”, properly speaking, is a fiction some political philosophers employ to gloss their pet political constructs. A fictional contract, executed in a fictional “state of nature”, established for the purposes of argument the philosopher’s preferred rights and responsibilities of rulers and ruled.

Even if “social contract” could be applied to ACC, it would imply a society-wide agreement. And that would imply equal treatment of injury and illness. (Some would add other mishaps, like unemployment and marital breakup and even, perhaps, old age, but that is beyond this column’s scope.)

Is there a way of erasing the injustice?

In richer northern European countries some benefits or pensions have been earnings-related. Under the pressure of globalisation, the generosity has been scaled back.

“Fairness”, a word much loved by Labour, would suggest emulating that for injuries and offsetting it with better illness benefits till they matched.

But what about genuine victims of employer negligence or recklessness? Would it be right to give them no more rights than the victims of illness just when victims of crime — whose tort right to compensation from their assailants the state nationalised centuries ago — are at last being tentatively allowed back in the frame.

Complicated? You bet. This month’s revision of injury law will not be the last. Justice is elusive.