Judges cannot order ACC top-up payments, court rules

The Supreme Court has ruled judges cannot order reparation payments that "top up" ACC 80 per cent payments after a Christchurch doctor appealed against paying $20,500 reparation to a woman injured by a mattress which flew off his car trailer.

The majority of the Supreme Court's five justices determined the Sentencing Act excludes compensation for loss of earnings because the victim already had entitlements under the Act which covers ACC, the Injury, Prevention, Rehabilitation and Compensation Act.

Anne McCabe was seriously injured when a mattress was blown off Dr Peter Miles Davies' car trailer by the wind and hit her as she was cycling into Christchurch's Governors Bay in November 2005.

Davies was convicted of carelessness in not tying down the mattress on the cage-sided trailer.

He was disqualified from driving for six months and ordered to pay Ms McCabe reparations for her expenses and losses, and emotional harm totalling $20,500.

It included $11,555 reparation for 20 per cent of the victim's lost earnings which were not covered by ACC payments.

The reparation ruling was upheld in the High Court and Court of Appeal.

However, Davies' lawyers argued in the Supreme Court the restitution order resulted in a disparity between victims of crimes and victims of accidents.

They said Ms McCabe should have received compensation from the no-fault ACC scheme rather than personal reparation.

The Supreme Court, in its decision released today, said it would allow the appeal.

Four justices said loss of earnings from physical harm was not subject to the Sentencing Act, with one of them, Justice Andrew Tipping, saying there would be no logic in prohibiting civil proceedings from seeking compensation for personal injury yet allow the same thing to happen through criminal proceedings.

However, Justice John McGrath disagreed and said the exclusion only applied to the ACC payment and not the 20 per cent shortfall.

The court quashed the $20,500 reparation sentence and replaced it with a total reparation sentence of $8495.

- NZPA