Gastro inquiry findings offer new compensation path for victims

The 5500 people whose health was affected by the August gastro crisis could have grounds to apply for financial assistance through ACC, it has been argued. PHOTO/FILE

Compensation could be available for the 5500 people struck down by last year's gastro outbreak - with ACC receiving legal advice on whether failures of local agencies constitute a criminal act.

Last August over a third of Havelock North's population fell ill after their drinking water supply was contaminated with campylobactor.

The outbreak was also linked to the deaths of three elderly people, caused Havelock North businesses to suffer financially, cost local agencies nearly $4m and sparked national concern about the safety of untreated water.

While packages of compensation have been offered to some impacted businesses, there has been no such compensation for those who were affected in August, who contracted secondary infections, or who are still feeling the effects of the outbreak.

However - a new avenue for financial assistance could be available for those affected by the outbreak to receive assistance from the Accident Compensation Corporation (ACC), after the findings of the Government inquiry into the crisis were released this week.

The inquiry found that several parties with responsibility for supplying water for Havelock North - in particular the Hastings District, and Hawke's Bay Regional councils, and Drinking Water Assessors - failed in their duty to protect public health and prevent such outbreaks.

The failings, most notably by the regional council and the district council, did not directly cause the outbreak, although a different outcome may have occurred in their absence.

Yesterday an ACC spokesman said they could only cover claims which met criteria under the Accident Compensation Act - which stated the ingestion of bacteria is not considered an accident unless it is the result of a criminal act.

However, Wellington lawyer John Miller - who specialises in ACC cases - says it could be argued the agencies failure to protect public health was a criminal act.

"That's the loophole as I see here, that the district council and the regional council and people they rely on for the testing have certainly breached some form of statutory duty or regulation" he said. "That to my mind constitutes a criminal act."

A lack of prosecution did not lessen the case that the breach was a criminal act, Mr Miller argued.

"This is what we have in New Zealand instead of suing when you're injured or when your ill health has been caused by someone, we have this scheme under the act."

Legal advice is being sought from ACC on this matter - the spokesman said they were looking to see whether the infringements of regulations admitted by the councils - as outlined in the inquiry report - could be considered criminal acts under our legislation.

ACC was able to identify five claims lodged relating to the outbreak. Four of these were declined, and one accepted as someone with gastro had suffered a physical injury.

"If need be, we will reconsider the declined claims once that legal advice has been received and considered," he said.

This was welcomed by gastro victim Scott Kelly - who said he would be "absolutely stoked" to receive some form of financial assistance.

"You couldn't put a figure on what this has done to me," he said. "Anything [I] could get would help."

The outbreak caused him to spend three weeks in hospital, lose his job, drop 12kg of body weight, take out a $20,000 loan to keep up with his mortgage, and undergo surgery to remove a quarter of his bowel.

He would not be able to fight for compensation through legal means, but felt those seriously affected by the illness needed to be compensated.

"People say it was a tragic accident...but some of us can't move on. I just have my fingers crossed [compensation] does happen, because it should."

Hastings Mayor Lawrence Yule told Hawke's Bay Today this week that the council was sympathetic to those impacted by the outbreak, and was trying to determine what assistance options were possible for those affected by the outbreak.

"In some cases people have fallen through the cracks and can't sue anyone because nobody has been found responsible," he said.

He admitted that the council had spent "a lot of money" on the inquiry, and that people had fallen sick through no fault of their own.

"We said this right from the start that we would leave no stone unturned."

Ministry of Health acting director of protection, regulation and assurance Phil Knipe said they were working alongside the Hawke's Bay District Health Board to ensure the best possible health outcomes for those affected, but "compensation is not something being considered by the ministry".

Mr Miller said the amount of assistance individuals could get would depend on their personal circumstances, however the entitlements available under ACC for normal injuries should be available to gastro victims.

Even if the effects were no longer being felt, he recommended people lodge a claim to cover any ill health effects later in life.

"It may be because you've been exposed to this you suddenly find yourself keeling over in about a year's time because of the combination of this event, and some other event. It'd make it easier to get assistance later."

He recommended those affected should lodge an ACC claim through their doctor, on the basis they had suffered an accident, or alleging an accident.

If ACC declined this, the claimant could then go through a review process, including a hearing.

"We're quite prepared to represent people in these matters and we only need one or two [people] to actually establish the claim for everyone."