A man has been awarded $50,000 by the Human Rights Review Tribunal after ACC breached his privacy by destroying his file.

In 2006, former boat builder Stuart Vivash asked the Accident Compensation Corporation for his file related to two back injuries he suffered in 1982 and 1985, according to the tribunal decision released in May.

Vivash, who suffered increasingly severe back pain after the second injury, underwent surgery in 1989 and was declared unfit for work in 2002, was from time to time in dispute with ACC over cover and payments.

He hired lawyer Paul Schmidt to check whether he had received the proper entitlements and back-dated employment-related compensation.


Schmidt requested a copy of the 1985 file but instead ACC provided the file for a back injury suffered in July 2002, the tribunal decision stated.

Schmidt again wrote to ACC in June 2006 and repeated his request for the 1985 file and also asked for a record of the weekly compensation payments made at that time.

ACC wrote back advising that the file had been destroyed and no information regarding
it could be provided.

However in May 2015, while in discussion with an ACC officer, Vivash learned by chance
that contrary to what ACC had told Schmidt, the weekly compensation payments for
the 1985 injury claim were, in fact, held by ACC.

Copies of the documents were then provided to Vivash and the records showed he had received minimum earnings-related compensation on his 1985 accident from November 1989 to December 1991.

Vivash lodged a complaint with the Privacy Commissioner because under Rule 5 of the Health Information Privacy Code an agency must ensure personal information is protected from loss or misuse.

Under Rule 6, the agency must provide individuals the right to access their personal health information.

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But ACC maintained the physical file had been destroyed and also that the payment information, while available at the time of the request, had not been considered as being held on a claim file.


The Privacy Commissioner accepted this explanation as correct and dismissed Vivash's complaint.

So Vivash complained to the Human Rights Review Tribunal which said it was only when the tribunal hearing at Palmerston North first began in April 2018 that ACC admitted it had breached Rule 6.

"It acknowledged, for the first time, that Mr Vivash's weekly compensation payments on the 1985 claim (the specific information sought by Mr Schmidt) were at the time of the request held by ACC in a form that was readily retrievable and should have been provided to Mr Schmidt in June 2006."

ACC apologised to Vivash and Schmidt saying it had no explanation apart from human error.

It also apologised for advising the Privacy Commissioner that it had not breached the privacy of Vivash.

But ACC argued it had not breached Rule 5 because the rule only applied to the unintentional destruction of files.

The tribunal disagreed, saying restricting the rule to accidental, unintended or fortuitous loss was too narrow.

The tribunal said the documents in the claimant's 1985 physical file would have included the claim for cover, medical reports obtained by ACC, medical certificates certifying him as unfit for work, calculations of his earnings-related compensation, any decision letters, and file notes of conversations with the claimant.

This information would be essential to Vivash and ACC over his lifetime, given the complexity of his claim.

The tribunal reviewed medical evidence that showed the 1982 and 1985 accidents had led to progressive degeneration in Vivash's ability to live and work.

But without the file, it was impossible to tell if he had received his correct entitlements.

The tribunal concluded ACC had also breached Rule 5 and awarded Vivash $40,000 in damages for injury to feelings, $5000 for the loss of benefit he might have expected without the interference with his privacy, and $5000 towards legal costs.