Mark Chapple: The Case Against ACC

Pete: 00:00:13

Are you tired of the ever rising cost of motorcycle registration here in New Zealand? If you're nodding your head, you're not alone. I'm Pete and this is Keep It Twisted, the official podcast of magnz.

If you've listened to our previous episodes, you'll know that motorcyclists are being hit with steep ACC levy increases on engine size and injury cost, rather than real world risk. My guest today is Mark Chappell. Mark has turned months of data research and analysis into a High Court challenge.

Next Monday, he'll be in court in Wellington for a hearing to timetable the next stages of his case against acc. Today he's going to walk us through the key legal aspects of that case.

He'll explain why he thinks the arguments used by ACC are invalid and describe the tactics being used by the Crown lawyers in defence.

At the end of the chat, you'll hear how you can support Mark by joining a protest ride from Waitangi park to the Wellington High court on Monday 10th August. So let's get into it, let's keep it twisted.

Pete: 00:01:16

So I'm joined again today by Mark Chappell, the man leading the legal challenge.

Mark spent his entire winter converting raw data disclosures into his legal challenge and he's here today not to complain about the cost of registration, but but to share a clinical audit on the data that he's been able to obtain and the methodology that we think ACC has used to push through the levy structure. Mark, welcome back.

Mark: 00:01:42

Hey, nice to be here.

Pete: 00:01:43

Before we get into the meat of today's episode, we've got an important day in court next Monday.

Mark: 00:01:48

Yeah. We're doing a timetabling meeting. We're pushing back a little bit against the lawyers for accident who think that they can push us around. Good.

Pete: 00:01:58

And we're going to Wellington for this one.

Mark: 00:01:59

Then you change to Wellington because apparently it's about where the decision was made, not so much where the decision affects you. So we've given up arguing about that.

Pete: 00:02:10

That's based on legal case law, is it?

Mark: 00:02:12

Yeah.

Pete: 00:02:12

You're a motorcyclist, you live in Christchurch, you're representing yourself at court.

Perhaps we can set the scene by you describing your relationship with motorcycles, Mark, and where this grounds you in your understanding of what ACC calls risk.

Mark: 00:02:27

I've been riding motorcycles my whole life, understand the risks. Well, size of the motorcycle has absolutely nothing to do with that. The number of motorcycles that you own has nothing to do with that.

These risk factors that ACC seem to be deciding, they're going to charge you for and charge you more for seem to be in no rational relation to the actual risk that we see in the real world.

Pete: 00:02:51

So there's no relationship to the rider capability, the power to weight ratio of the bike or the exposures of variables on the road. That's not how ACC are measuring risk, is it?

Mark: 00:03:02

Measuring risk is the cost of the injury.

ACC and the Minister conflated post crash injury costs, medical expenses and rehabilitation costs and right of vulnerability with the legally relevant risk contribution pre crash behaviour or hazard. So they're saying that they can measure risk simply by the cost of the injury, which is not how you measure risk.

Unison Network limited and Commerce Commission. That's the foundational case in that area.

A risk rating proxy must measure true operational hazard rather than penalizing a class merely because injuries resulting from incidents are physically or medically severe.

ting that has been decided in: 2001

Pete: 00:04:03

To continue setting the scene, what we've seen so far is a huge increase in the number of people who've placed their motorcycles on hold.

Mark: 00:04:10

Absolutely.

When you push registration fees beyond what an average working class person or a young commuter can justify, they don't magically become safer road users. They either opt out of the system entirely and park up their bikes or they face the choice of riding unregistered.

The Crown hasn't created a safer riding environment, they've simply driven a wedge into the transport choices of everyday New Zealanders. That's exactly why I've stepped up as their parent in person. Litigation isn't a private commercial dispute over an insurance contract.

It's a fundamental public law challenge brought on behalf of the entire membership of MAGNZ and the wider class of effective New Zealand motorcycles.

We're fighting to prove that the executive power has been exercised in a manner that is completely irrational, statutorily untenable and built on a contaminated pool of information.

Pete: 00:05:04

This isn't an academic exercise, is it? People are being priced off the road.

Mark: 00:05:09

Yes. This is the core of the entire case.

ACC sets these differential levies by utilising what they call statistical case estimate combined with valuation algorithms managed by their internal people and external firms like Taylor Fry. They determine it by a simple formula, claim frequency multiplied by claim severity, which is average lifetime cost of supporting an injury.

They argue that because a motorcyclist has little physical protection in a crash, the medical treatment, rehabilitation and long term outstanding Claims liability for a motorcycle accident is phenomenally high.

Therefore, they claim motorcycles pose a higher cost risk to the motor vehicle account, which must be recovered through these steep tiered registration bans.

Pete: 00:05:56

In the first course of action, within your statement of claim, you made an explicit plea that ACC has committed a fundamental error of law. And I wonder if you can explain that to listeners in as simple a way as possible.

Mark: 00:06:08

Our submissions to the court are that risk is talking about biological risk, it's talking about the risk of the accident occurring, it's not talking about the cost. ACC, if it was, the MPs were perfectly at liberty to put cost in there. Instead of the word risk, they are mixing cost risk with biological risk.

And that's one part of what we're saying. The other part is that ACC have said the cost is this large number and then said that motorcyclists should pay 37% of it.

Both of those figures being the large number that the supposed long term cost of the motorcycle accidents and the 37%. Both of those figures seem to have been pulled out of somewhere. That is very hard to ascertain because they just won't tell us how they made it up.

They deliberately went to an external agency to have the external agency do the so called black box calculations so that that external agency wasn't going to be subject to the Official Information act, which is some really dirty pull and absolutely unnecessary.

However, luckily for us, the court isn't under such restrictions and the court can pierce that commercial sensitivity barrier if they deem it necessary. And this is one of the things we're about to be arguing in front of the court.

Pete: 00:07:45

So that's the basis they've used to increase levies and well, for me, this year it's cost me $816 to register my bike.

Mark: 00:07:54

I don't think they've confused it because they're confused. I think they've just decided to do it.

And yeah, trying to pretend that the word risk means different in this act than it means in every other act that the government is subject to.

Pete: 00:08:11

Have they got a legal basis for using risk in that way?

Mark: 00:08:14

Then there's no reasonable legal basis for that whatsoever, which is what we're arguing. You can look at it from the point of view of does this make sense? Is there justification there?

You can also look at it from the point of view of why on earth are you doing that to motorcycles when you're not doing the same thing to cars? V8 performance car versus a 1 litre economy hatchback. They're making no differential between the two.

Pete: 00:08:42

Well, they're paying the same levy, aren't they?

Mark: 00:08:44

Absolutely. Whereas supposedly a 750cc and above motorcycle has to pay more than a 750 and below because it's more dangerous or got a greater risk.

This is absolute rubbish. At a minimum, you would treat motor vehicles in the same way.

If you're going to say that powder weight ratio is a determining factor to the severity of the accident, then surely you would apply that across all motor vehicles.

They haven't done that, but as far as we can tell, they've simply searched through for the word motorcycle contained within either the ACC 45 form or the ACC 46 form, both of which are the ones that are filled out by your medical provider when you arrive. Let's say in hospital, you might go to your GP or it might be a physio and you've had an accident.

It appears to us that they have simply filtered for every time the word motorcycle comes up.

So, for example, let's say you're in your garage and your dirt bike falls off its stand and lands on your foot and you are unfortunately busy telling the truth. When you're in pain at the hospital and saying, yeah, a motorcycle fell over on my foot, they write the word motorcycle that gets captured.

Pete: 00:10:10

That's exactly what happened to Paul, who was our guest last week.

Mark: 00:10:14

It's absurd, isn't it, really? One of the big learnings for the motorcycle community is to never say the word. Don't say motorcycle. A car ran into me, a pedestrian ran into me.

Make it a pedestrian accident. Pedestrians and cars don't get hammered like we do. So, you know, have we been able.

Pete: 00:10:39

To equate figures that we think they've arrived at with the actual accident data that I presume is published by the police?

Mark: 00:10:46

Oh, yes, we have CAS data, it's called, which is Crash Accident Statistics. And it turns out that only 27% of ACC's core data set matches up with Waka Katahi's data set.

Now, they are police attended accidents, so you've got some sort of external verification of what motor vehicles are involved. Presumably it was on the road. However, that's not, strictly speaking, correct.

I've been on trail rides where the police have attended because there's been a serious accident and a helicopter was needed for the injured party and what have you. And the police come out because it's a good idea for them to help out. Everything. No one objects to that. That's great.

But that will no doubt go into the CAS database as a motor Vehicle accident and that's fine, but I'm sure the word motorcycle will come up. So suddenly we've got an off road motorcycle accident, there's contaminating the supposed road going 1.

We have no idea whatsoever as to how ACC filtered those out. I personally don't think that they have, but I can't say that for certain because they won't tell us.

Pete: 00:12:02

Is there a part of the legal case that's designed to try and obtain that information or at least a full explanation from ACC then?

Mark: 00:12:09

That's exactly the step we're at at the moment. Yeah. I was in disbelief when I had a meeting with the lawyers for ACC and the Crown.

I just assumed that they would hand over the required data because there are a number of court cases that say consultation isn't consultation unless you give the core data in the methodologies and any filtering that's needed over to the people with whom you're trying to consult and they have absolutely failed to do so. We're saying, well, this is a pretty clear cut legal position, you have to or you failed to consult.

I assumed that when they saw that they understand the law, they would just do it. I didn't think for one minute that they'd go, nope, nope, not doing it, not going to. You have to make us.

So now we have to apply for a court order to make them give that over, which they're intending to oppose. And by opposing it they're going to try and run some argument that we don't need it. We absolutely do.

Because unless ACC want to sit back and say we made it all up, we need that data.

Pete: 00:13:31

So just to be clear there, Mark, what we're saying there is that we've asked for the information through the Official Information act and they've refused to release it. So that now we're going to court in order to ask the court to get them to release that data.

And we feel that they're still going to argue and try to avoid releasing any information that's relevant to this case.

Mark: 00:13:54

They're not avoiding releasing any information, they're avoiding releasing the core data and the filtering and the SQL inquiries into their database.

If we are to audit what they've done, we need to be able to reproduce their results from their data in order to know, ok, we now know how you got this and then we can say we agree with the way you went about it or we don't. We are currently saying we don't agree with your result, but we're not entirely sure how you got it.

Pete: 00:14:28

I'm struggling to understand why they've been so obtuse. Mark.

Mark: 00:14:31

They don't want to release it prior to the election. It looks embarrassing because it is embarrassing.

We have enough information to say that we've got a pretty high probability that what they've done is not mathematically and statistically tenable. Any more information released, I think, is only going to show that it's even worse than what we could currently show.

Of course, they don't want to give away any more of the stuff they've been up to. That's an opinion. But how silly would they be to withhold it all if it showed that what they did was correct?

Pete: 00:15:06

That's the bit I'm struggling to understand. The balance of probability says that they're refusing to release information because it's not correct.

Mark: 00:15:15

That's what I suspect is the case. That's definitely what the information we've gained.

Pete: 00:15:20

So far indicate has ACC and their lawyers put forward a formal position in relation to the information that we're after, then?

Mark: 00:15:27

Yes, they filed their statements of defence on 31 July, which is days ago. Now. It's a masterclass in boilerplate evasion.

In the formal statements of defence, the first respondent filed by Simpson Gresson, they utilise a dual layered pleading tactic.

First, for almost every paragraph where we detail the statutory misinterpretation or lack of modelling, they state the paragraph contains legal submission to which they're not required to plead. That legally is the equivalent of hiding under the blanket.

Pete: 00:15:58

Yeah, it sounds like it.

Mark: 00:16:00

When we outline my identity as a licensed road user residing in Christchurch, they state they admit my name, but otherwise have insufficient knowledge of and therefore deny the allegation. What on earth is that? You bunch of idiots. If you're going to call me a liar, try doing it.

Pete: 00:16:17

You know, Sounds like a script from Yes, Minister.

Mark: 00:16:20

Absolutely. And a bad one. I mean, they're usually better than that.

Pete: 00:16:24

We're headed back to the High Court on Monday for a timetabling meeting.

Mark: 00:16:28

Yes.

Pete: 00:16:29

Where do we go now that it's shifted to Wellington? What happens next?

Mark: 00:16:34

Well, we've got an interesting argument between the two of us. So ACC the Crown. They're a bunch of lawyers, because there's three lots lawyers there pretty much wanting to delay this through to next year.

And they're also trying as best they can not to release any of the discovery we're after. And if they're forced to release any of it, they want to argue about every single piece. That takes as long as possible.

Pete: 00:16:58

A common man observer would say that that's just delaying tactics.

Mark: 00:17:03

Yeah. It appears to me they're hoping to delay not just the result of the review, but also, if they can, any of the discovery.

They want all of that left until after the election. That is what it appears to be. They really are throwing the brakes on as hard as they can.

Pete: 00:17:19

There can't really be any other explanation for that.

Mark: 00:17:22

That would be my guess, too.

Pete: 00:17:24

But haven't they got a duty to cooperate?

I mean, under the Official Information act for a start, and then being a judicial review, surely they've got an official duty to cooperate with any requests.

Mark: 00:17:35

Oh, there's cooperation and cooperation, isn't there? They are just digging in and saying that they fundamentally disagree with our legal position that we are due that disclosure.

As such, they are going to oppose every application we make for every piece of disclosure, and they're going to argue it. And so we're going to have to put in an argument as to why we need each piece of disclosure.

And with the judicial review, you're not allowed general disclosure. You're not allowed to just have everything in the area.

You've got to make quite pointed disclosure requests to the degree that they turned around the meeting and said to us, well, if you tell us the name of the document that we haven't given you, we'll look at whether we'll give it to you, knowing full well that we obviously don't know the name of something that we don't have.

Pete: 00:18:28

I'm surprised there's no disclosure laws that compel them.

If this was a criminal trial, the prosecution would have an absolute duty of disclosure to release all of the information that had been gathered that was pertinent to the case. I can't believe that that's not the case for a civil matter.

Mark: 00:18:44

Yeah. This is an interesting access to justice public law question on this one.

ties were tightened up in the: 2016

It means that both sides, and you must remember the side with the most lawyers, can ask the most disclosure questions, can't they? So that does help us as well.

They're not asking us 10 million questions that aren't really relevant, but also we have to show relevance for anything that we're asking for. And so it means that you narrow it down to the very important stuff that covers the very important questions that you're putting before the court.

And we've done that.

And it's those things that they are still refusing and going to argue about releasing as an example of the wider stuff that under the old regime and under a criminal trial, you could ask for, you could ask for every email that has anything to do with. Anything to do with the case from the department. Well, we most certainly can't do that here.

And chasing little trails like that, such and such said this and so and so said that.

And that's why the legislation as it stands, so that we don't get into silly little arguments about muddying the waters like that, we get into substantive arguments, but the substantive argument we're having is about the core data and how did you come up with the figures that you've come up with? How did you come up for conclusions? The conclusions that were the only information that you actually consulted on in the.

Pete: 00:20:24

First episode we recorded. You spoke at length about the Woodhouse report and the process that led to the introduction of the ACC act.

And I've listened back to that episode a few times and I've read a bit wider around the whole issue. And I'm left feeling that we're getting a long way away from where Woodhouse wanted us to be. When the ACC framework was introduced, it's.

Mark: 00:20:47

Happened through drift and successive governments just putting a little bit more and a little bit more. They're rehashing the arguments that were very, very thoroughly discussed and had back then to come up with the scheme in the first place.

And they're trying to undermine it slowly without ever putting it back to the, to the people. I've had discussions with a huge number of people over these things.

As soon as I come up with Woodhouse's sound recommendations as to why they recommended the way they did, taking into account all of the pros and cons of all of these things, the majority of people immediately go, well, actually that's sensible.

You have a lot of factors to weigh up and simplicity and fairness and effectively equality is the easiest way to go about that because the alternatives are just really messy.

Pete: 00:21:47

nd we introduced that back in: 1974

Yet all of a sudden, if you own multiple motorbikes, you're being charged multiples of many hundreds of dollars a year. Well, that feels punitive.

Mark: 00:22:06

It absolutely is.

And unbelievably, both acc, MBIE and other government departments have written reports on that punitive nature of that and have identified that it is unreasonable. And yet we still haven't.

Pete: 00:22:22

They've still gone ahead.

Mark: 00:22:24

This isn't just me talking. I know, and you know full well it's punitive and absurd.

How is someone that has 3, 10, 20, whatever motorbikes they might be, whatever they might be, more at risk?

Pete: 00:22:38

You're allowed to own that many motorcycles. There's nothing in law or anywhere that says you can only own one.

Mark: 00:22:43

Yeah. How is it reasonable for you to get one lot of COVID if you own 10 motorbikes and have one crash?

You're not getting 10 times 80% of your wages paid to you, are you?

Pete: 00:22:57

No, absolutely not. Well, you can only ride one motorcycle at a time anyway.

Mark: 00:23:01

Yeah. And you can only have one crash and you can only be off work from one job. You get not $0.01 more cover for paying multiple levies.

What on earth are you, like, playing at? There's nothing fair, rational or, frankly, it looks like perhaps not even legal about that situation.

Pete: 00:23:22

Well, I think that's what we hope to find out at court.

Mark: 00:23:25

We can't predict what they'll see, but we are presenting pretty reasonable arguments to them that this just isn't necessarily on.

Pete: 00:23:34

Well, as a layman, it feels reasonable and it feels very measured and very balanced. And I think that's a reflection of the fundamental position that what we're dealing with just isn't right.

Mark: 00:23:43

Absolutely. And what we're now in the middle of is saying, are the courts willing?

And this isn't trying to preempt what the court should or shouldn't do, because that would be wrong, but it is a reasonable question to say, are the courts willing to stop government department in this case ACC from pretty much writing their own rules to a degree that they are absolutely undermining, not only the act under which it gives them the ability to write these regulations, but just about some fundamental fabric of New Zealand society, an unelected government department having that kind of influence over the country we live in.

This is exactly the sort of thing that the courts are supposed to be able to intervene in and say, no, no, you can't, no, you shouldn't, no, you won't. This is not tenable.

You do not have the legislative framework that allows you, who messed with the act in such a major way, and we've got to show that that's what's happening and hope that the court will see it as that and say, nope, you're not doing it.

Pete: 00:25:10

That's the ultimate goal. The next step in our path along that journey is on August 10th, that's next Monday and we'll be riding to support you.

We'll be riding from Waitangi park in Wellington to the High Court in Wellington.

Mark: 00:25:23

It'll be wonderful if people can turn out and support and if we remember that we're supporting the investigation of this by the courts, we're hoping that it'll get exposure through the process and that some common sense will come in somewhere.

Pete: 00:25:41

Well, I'll include more details at the end, but the rally point will be at Waitangi park in Wellington from 8am next Monday. I'll be there, Richard and Ants will be there.

And you'll be there, Mark, because we're riding to support you when you present the next stage of this battle at the High Court.

Mark: 00:25:56

It'll be wonderful to see everyone there.

Pete: 00:25:58

So, Mark, I really want to thank you for the clarity that you brought today. It is really complicated and I hope for listeners sakes that we've outlined some of the main issues here in as simple a way as possible.

Mark: 00:26:09

Thanks very much. It's been quite a headful getting to this point.

Pete: 00:26:13

Well done you for continuing on with the campaign. I will see you in Wellington next Monday. And anybody else, I'd love you to join us on the ride from Waitangi park to the High Court.

Pete: 00:26:26

That's Mark Chappell laying out why he believes ACC Motorcycle Levy structure rests on a fundamental error of law, contaminated data and a refusal to release the core numbers and filters. The next step of this case is on Monday 10th August at the High Court in Wellington.

Pete: 00:26:41

If you can make it, we'd love.

Pete: 00:26:43

You to join our support ride.

We'll meet at Waitangi park from 8am we'll ride together to the High Court where we'll meet Mark and others from the campaign before they head into court. The hearing will start at 10am so riders will be free to leave by then.

This is a visible show of support for a public law challenge that affects every motorcyclist in the country.

Details will be in the show notes and on the usual channels, but please do your best to share this episode, talk to other riders and if you're in Wellington on Monday, please show up to lend your support. If you're not able to make it, visit magnz.orgnz and please follow the links to our Give a Little campaign and merch shop.

I'll be at Waitangi park on Monday morning. I'm riding Tail End Charlie and I'll have a Keep it Twisted podcast banner on the back of my bike. Come up and say hi.

Maybe we can record some audio for the show. Until then, ride safe. Stands up. Visors down and keep it twisted.

Music: 00:27:36

We're.

Music: 00:27:36

Not gonna pay it and no, we ain't gonna pay it we're not gonna pay it anymore.