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Accident Compensation in Swiss and New Zealand

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Accident Compensation in Swiss and New Zealand ACCIDENT COMPENSATION IN SWISS AND NEW ZEALAND LAW – SOME SELECTED ISSUES THAT UNDERMINE THE PURPOSE IN BOTH SCHEMES By Yvonne Wampfler Rohrer A dissertation submitted to the Victoria University of Wellington in partial fulfilment of the requirements for the degree of Master of Laws Victoria University of Wellington 2009 ABSTRACT This dissertation analyses selected issues that undermine the coherence and the purposes of the Swiss and New Zealand accident compensation schemes. Unlike other European states the Swiss accident compensation provides cover for non-work related accidental injury, which makes it a useful subject of comparison with the New Zealand accident compensation scheme which provides a comprehensive, no fault compensation scheme for personal injury. In undertaking a largely comparative approach the paper argues that both schemes have drifted away considerably from the original underlying purpose to provide compensation for work incapacity and, on the other hand, to restore the claimant to a level of work capacity as soon as possible. This thesis is illustrated by examining the vulnerability of the schemes to political change, the arbitrary dichotomy between incapacity to work caused by accidental injury and incapacity caused by sickness, the definitions of an accident in both schemes and the assessment of evidence. The paper finds that both schemes should be amended and suggests alternative approaches for each issue. STATEMENT ON WORD LENGTH The text of this paper (excluding abstract, table of contents, table of cases, bibliography, materials, and footnotes) comprises approximately 33,450 words. TOPICS Swiss and New Zealand accident compensation – incoherence – legal framework – dichotomy between accident and sickness – evidence 2 TABLE OF CONTENTS ABSTRACT 2 I INTRODUCTION 7 II PURPOSE AND LEGAL FRAMEWORK 10 A Purpose of both Accident Compensation Schemes 10 1 Swiss accident insurance 11 2 New Zealand accident compensation 13 B Overview over the Legal Framework in both Schemes 16 1 Swiss accident insurance 16 2 New Zealand accident compensation 20 III THE VULNERABILITY OF THE SCHEMES TO POLITICAL CHANGES 26 A Swiss Accident Insurance 26 B New Zealand Accident Compensation 30 C Observations 31 IV THE ARBITRARY DICHOTOMY BETWEEN INCAPACITY CAUSED BY ACCIDENTAL INJURY AND INCAPACITY CAUSED BY SICKNESS 33 A The Underlying Purpose of the Dichotomy 33 1 Swiss accident insurance 34 2 New Zealand accident compensation 38 3 Observations 40 B The Consequences of the Arbitrary Dichotomy for the Person Suffering from Work Incapacity 41 1 Swiss accident insurance 41 2 New Zealand accident compensation 43 3 Observations 45 C A New Approach and its Political Feasibility 46 1 Swiss accident insurance 46 2 New Zealand accident compensation 49 3 Observations 50 3 V DEFINITIONS OF AN ACCIDENT IN BOTH ACCIDENT COMPENSATION SCHEMES 51 A The Primary Definition of an Accident (Article 4 ATSG) 52 1 Physical or mental injury 55 (a) Swiss accident insurance 55 (b) New Zealand accident compensation 55 (c) Observations 58 2 Causality 59 (a) Swiss accident insurance 59 (b) New Zealand accident compensation 62 (c) Observations 63 3 External force or resistance 64 (a) Swiss accident insurance 64 (b) New Zealand accident compensation 65 (c) Observations 67 4 Time limitation 67 (a) Swiss accident insurance 68 (b) New Zealand accident compensation 69 (c) Observations 70 5 Involuntariness 70 (a) Swiss accident insurance 70 (b) New Zealand accident compensation 71 (c) Observations 72 6 Unusualness 72 (a) Swiss accident insurance 72 (b) Observations 78 B Case Study (‘Piece of Shot in Venison’) 79 1 Under Swiss accident insurance 79 2 Under New Zealand accident compensation 83 3 Observations 85 C Conclusion 85 4 D The Secondary Definition of an Accident in Swiss Law (Article 9 UVV) 88 1 Theoretical and historical underpinning of the definition 88 2 Elements of the secondary definition 89 (a) Physical or mental injury 89 (b) Causation, suddenness and involuntariness 91 (c) External force 92 3 Practical relevance of article 9 UVV, especially for sport injuries 93 E Case Study (“Lunge while Playing Tennis“) 96 1 Under Swiss accident insurance 96 2 Under New Zealand accident compensation 99 3 Observations 100 F Conclusion 100 VI EVIDENCE 102 A Standard of Proof 102 1 Swiss accident insurance 102 2 New Zealand accident compensation 104 3 Observations 105 B Burden of Allegation and Proof of the Insured Person 106 1 Swiss accident insurance 106 2 New Zealand accident compensation 109 3 Observations 110 C Assessment of Evidence 111 1 Swiss accident insurance 111 2 New Zealand accident compensation 112 3 Observations 113 D Maxim of Evidence of the Declarations of the First Hour 113 1 Swiss accident insurance 113 2 New Zealand accident compensation 117 3 Observations 117 E Case Study (“Backwards Cartwheel Case”) 118 VII CONCLUSION 120 5 VIII BIBLIOGRAPHY 122 A Primary Sources 122 1 Legislation 122 (a) Switzerland 122 (i) Statutes 122 (ii) Regulations 122 (b) New Zealand 122 (i) Statutes 122 (ii) Bills 123 2 Cases 123 (a) Switzerland 123 (b) New Zealand 125 B Secondary Sources 126 1 Texts 126 (a) Switzerland 126 (b) New Zealand 129 (c) Other countries 130 2 Articles 131 (a) Switzerland 131 (b) New Zealand 132 (c) Other countries 135 3 Electronic Sources 136 (a) Switzerland 136 (b) New Zealand 136 (c) Other 137 4 Reports 137 (a) Switzerland 137 (b) New Zealand 137 5 Other 138 (a) Switzerland 138 (b) New Zealand 138 IX APPENDIX: OVERVIEW OVER THE SWISS SOCIAL SECURITY SYSTEM 139 6 I INTRODUCTION Accident compensation is one of the major parts of the social security schemes in New Zealand and Switzerland. Even if the schemes have different roots and have emerged from different political backgrounds, they share the same underlying purposes; to provide cover compensation for work incapacity caused by accidental injury and to restore the claimant to a level of work capacity as soon as possible. Unlike other European states the Swiss accident compensation provides cover for non-work related accidental injury. This characteristic makes the Swiss system a useful subject of comparison with the New Zealand accident compensation scheme which provides a comprehensive, no fault compensation scheme for personal injury. Both schemes provide a good basis for providing a level of social security. However, the current schemes as they are shaped today have drifted away considerably from the original underlying purpose, leading to arbitrariness and incoherence of the legal framework. In the New Zealand accident compensation scheme, such arbitrariness and inconsistency may be more the result of the legislative and political systems, whereas in the Swiss accident insurance scheme, jurisprudence plays the major role in creating these factors. The focus of this paper is to identify and explain selected issues in the New Zealand and Swiss accident compensation schemes on a thematic basis in order to increase understanding of both schemes and to make suggestions for improving the scope and limitations of both schemes. This analysis is more carried out in regard to the Swiss system as this paper argues that it has more limitations than the New Zealand system. Eventually this paper, in analysing selected issues about both systems, argues that certain identified limitations result in a level of legal incoherence, perhaps even legal insecurity which undermines the underlying purpose of both schemes. This thesis will be illustrated by selected issues with observations on both schemes. First, this paper will show that the New Zealand accident compensation scheme is much more vulnerable to political change than the Swiss accident insurance scheme. This vulnerability is largely due to the different political systems. Whereas the Swiss government is constituted of continuous balanced coalition of the major political parties, in New Zealand, the Prime Minister nominates the government. This difference 7 in political systems is reflected in the accident compensation schemes. The Swiss scheme has only undergone minor amendments over time, whereas the New Zealand scheme has been rewritten five times reflecting the ruling party’s ideology. It is suggested that a modern democracy should provide a stable social security policy by maintaining the core entitlements such as weekly compensation, medical expenses and a comprehensive rehabilitation plan for the injured person. It is certainly difficult to define those notions because law and politics are undeniably interrelated. However, this paper argues that these core components should not mirror the political ideology of the ruling party. Rather should the content of the core entitlements be defined, based on a consensus between the political parties in order to outlive a change of government. Second, this paper will demonstrate that both schemes are perpetuate an arbitrary dichotomy between incapacity caused by accidental injury and incapacity caused by sickness. Both schemes provide cover for specific occupational diseases within the accident compensation scheme, but not for non work-related diseases. However, the need of the claimant to cover the financial loss due to work incapacity is the same as for incapacity caused by accidental injury or incapacity caused by sickness. There is no logical reason for this distinction.1 Third, the definitions of “accident” as a threshold for cover in both schemes will be analysed. The definitions of an accident and personal injury in the New Zealand scheme results in more legal security because significant weight is given to the medical report determining causation. In contrast, the question of causation tends to be a more legal than a medical question in Swiss law because jurisprudence has developed a two- step test: There must be a natural and adequate causal connection. Whereas the natural causal connection will be decided on the basis of the medical report, the adequate causal connection is a purely legal question which gives the judge the discretion to even decide against the result of the medical report.2 In addition, the Swiss scheme has developed a primary (article 4 ATSG) and a secondary definition of an accident (article 9 UVV) along with an often incoherent or inconsistent jurisprudence.
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