In a somewhat obscure essay, Karl Figlio once tried to historicise the accident as a curious social artifact, thinkable only within capitalist social relations. The notion of accidents, he argued, becomes generalised as common sense in an environment where highly dangerous labour processes require two things: the consent of the worker and the possibility of compensation without admission of liability.
In response to these conditions, the discourse on accidents acquires purchase as it comes to mediate a general capitulation to the hegemony of industrial capitalism. Focusing on the increasing recourse to contract labour and workmen’s compensation acts in particular, Figlio sought to show how these technical changes gave but a formal character to a more fundamental social transformation: the emergence of novel conceptions of injury, its causes, as well as its redress. The idea of accidents conceptually amalgamated this new set of expectations and allowed a whole range of institutions to form around it.
This account seems rather instructive as debates re-emerge around New Zealand’s iconic Accident Compensation Corporation (ACC), the sole provider of accident insurance in the country. The most recent review of the organisation was launched after it was revealed last year that staff circulated client information on a private Snapchat group. As a breach of claimants’ privacy, this incident has a longer history, and the recent report tellingly begins by referring to a similar high-profile case and subsequent review in 2012.
During the intervening years, other stories and complaints about the organisation have come to light. Survivors of sexual assault have drawn attention to the gruelling process they’re subjected to while seeking access to their entitlement, partly due to lack of transparency and accessibility, and partly due to a labyrinth of bureaucracy, paperwork, and a set of evidentiary criteria that are either needlessly demanding and re-traumatising or bafflingly inconsistent and vague. Survivors and witnesses of the Christchurch mosque shootings have also voiced their dismay at their exclusion from ACC support, despite endorsement from the Royal Commission of Inquiry as well as from ACC experts and legal specialists. Meanwhile, emerging reports and anecdotal evidence point to an increasing number of workers who struggle to access and acquire cover for redundancies caused by the contraction of covid-19 and especially the effects of long COVID.
As a key crown and public entity, ACC deserves much of the attention it gets, especially at this time. Initially set up as the accident compensation commission in 1974, the scheme was novel at the time and is still used today as an exemplar of injury compensation. Providing comprehensive no-fault insurance cover to victims of personal injury by accident, the scheme was and continues to be lauded for its departure from the more adversarial and costly system requiring proof-of-fault. It was also seen as a more principled alternative to private insurance as well as an improvement on existing workers’ compensation schemes that were limited in both the extent and duration of cover. Of course, the scheme had its limitations, particularly around the provision of more robust and sustained rehabilitative care, but these were seen as a kind of teething problem, with commissioners and legislators recommending legislative expansions to allow the organisation to mature. This potential was, however, nipped in the bud as ACC suffered a similar fate to other victims of the neoliberal broadside since the 1980s.
While escaping the worst excesses of this attack, and while third-way labour governments subsequently sought to restore the original state-run scheme, ACC has since become increasingly beholden to the interests of a managerial and technocratic class more invested in limiting the number of claims and in phasing out clients than in the provision of care and cover.
As a result, over the years ACC has become notorious for its inability to garner public trust and confidence. That the organisation needs an overhaul should go without saying at this point, but the basis on which this should be done deserves more careful attention than it has so far received. While health advocates and legal specialists have rightly and perceptively outlined why the organisation is not fit-for-purpose, it doesn’t seem that enough work interrogates its actual purpose, both in the sense of the conditions of its emergence and of the logic undergirding its technocratic machinery. In this regard, interrogating the place of the faultless, accidental injury as an organising principle of the scheme seems key.
What work does this idea actually do, and what have we been doing with it by giving it an institutional form that transforms it from a social fiction into a social fact? I say social fiction not just because, as a recent report by ACC specialists put it, New Zealand in fact does not have a no-fault personal injury system, given the very strict thresholds imposed on claimants to satisfy beyond reasonable doubt the demands of injury causation testing. I’m also referring to accidental, no-fault injury as a social fiction in the classic sense that it must be produced, and personal injury systems like ACC are precisely the mechanisms for producing and reproducing what, in the context of capitalist social relations, becomes a peculiar but instrumental social fact.
In historicising the work of this idea, one could of course do worse than to reiterate the observation common in Left critique of accident compensation that it was clearly something established at the high tide of an era characterised by the infamous and state-mediated compromise between capital and labour. That workers’ access to compensation is contingent on ceding their rights to litigation, let alone class action, is the most obvious and often noted marker of this accord, and it testifies to the way that faultlessness must be systemically organised and legally enshrined. Ironically, these very accounts often culminate in the supposition that, in the wake of neoliberalism’s mangling and corporatisation of the ACC act, the best that one can do is return to the original principles and intentions of its authors, so as to reintroduce the element of faultlessness and to put it at the service of claimants.
The discursive effects of faultlessness and the problems of enshrining it as a principle of injury compensation can be elaborated endlessly, and one need hardly look further than its broader implications for survivors of racial and sexual violence. A broader historical context is not only illuminating but also theoretically provocative for reimagining what the politics of injury and injury compensation could look like in an era of endlessly unfolding crises. Instructive in this regard is the work of Marxist anthropologist William Pietz, who, like Figlio, takes an interest in the transformations that swept across mid-nineteenth century British institutions and established many of the legal structures that continue to inform how we deal with the compensation of injury and death. Of particular importance to his analysis is the passing of the fatal accident acts, which, according to Pietz, must be understood as expressing far more than a minor legal reform or formality. ‘Fatal accidents’, he insists:
… are a form of historical trauma common to any culture. For those who love and materially depend on the deceased, their disruptive force becomes a negatively lived object, an impassioned fixation, which represents a crisis not only in the violated hearts of certain individuals, but in the general structure of material social relations. Any culture must establish some procedure of compensation, expiation, or punishment to settle the debt created by unintended human deaths whose direct cause is not a morally accountable person, but a nonhuman material object.
Pietz’s argument is mainly concerned with showing how ‘British legal institutions articulated the solution of liberal capitalist society to the general problem of the relation of the value of money to the value of human life,’ as well as showing how ‘fatal accidents and other torts [functioned] as an origin of novel debt liabilities and hence of new monetary values.’ This would require us to ‘acknowledge that death, the destruction of life, the very antithesis of an economically productive event, sometimes creates money.’
The most obvious example for Pietz, and the most relevant for this discussion, is the mushrooming of insurance companies with the passage of the fatal accidents act, which of course ‘meant that compensation for death was now a matter for civil remedies.’
Given that Pietz’s focus is on fatal accidents rather than debilitation or disability, what I find particularly revealing is the centrality that his discussion gives to the problem of assigning moral guilt and criminal liability in cases where the cause of death and injury is an inanimate object, such as the exponentially numerous locomotives at the time. Then as now, the idea of holding objects directly responsible and therefore punishable for injury and death is anathema, but in fact there is plenty of precedents in that regard and—as Pietz shows—the legal reforms that articulated the relation of the value of money to the value of human life took place against a backdrop which saw the abolition of pre-existing customs. These were quasi-religious laws that essentially allowed people to assign an agency (often the sovereign ruler) responsible for the so-called accident even where, technically speaking and from a ‘modern’ perspective, there was none. Noteworthy in this regard are the famous deodand laws, which allowed ‘local juries whose towns and farms were invaded by the new reality of mechanized transportation’ to invoke the Crown’s authority in pursuing justice for accidental injuries and deaths. The abolition of these laws ‘meant that it would not be the powerful state that sued railroads and other corporations for compensations, but rather the relatives of the fatally injured person.’
The legal revolution of the mid-nineteenth century was therefore also the revenge of modern corporations against claimants who sought to use older laws as recourse for justice by petitioning the intervention of the state in cases where new technologies were the cause of death, maiming, and mutilation. In abolishing these traditions, the reforms were manufacturing novel conceptions of fault and accountability, which became generalised through legal innovations such as limited liability.
For Pietz, these legal structures can be understood as what he, following Bruno Latour, calls a science of hybrids: that is, mechanisms for the translation of culturally and socially specific understandings of natural causality into legally binding obligations. This is of particular relevance here, given the way that causation seems to function as the principle means by which the personal injury system establishes or withholds access to coverage and entitlement.
The criteria for determining injury causation are anything but self-evident, and it is so often the case that courts and legislators go out of their way to accommodate this, and to ensure that there is scope for interpreting causality in socially and purposively productive ways. Moreover, the ACC report goes to great lengths to argue that disputes over the interpretation of causality have far less to do with the legislation or the available knowledge and expertise, and far more to do with the increasing pressures on the corporation to act as a private insurance company.
The authors of the report view this as an issue of expanding the scope for determining causation within the definitional boundaries imposed by the condition of faultlessness. Far from offering a panacea, however, this formula can be seen as the source of the ACC crisis. As no few historians and sociologists have observed, the accident is a modern invention whose logic confounds and obfuscates, rather than clarifies, the reality of causation as a historically mutable and culturally contingent process.
It is not just that this allows us to outline a realm of possibilities in which things happen without a liable agency or intentionality. Through its wedding to medico-juridical discourse, it also institutes a common sense wherein it becomes possible to differentiate between forms of causality that are socially meaningful and recognisable, on the one hand, and others which are not. By extension, it provides a discursive medium wherein different forms of injury and violence become subject to a shifting calculus of inclusion/exclusion. That is, the category of the accident both allows and requires a technocratic machinery to delineate and delimit what passes (and what fails) as socially recognisable and legally binding forms of injury based on the medico-juridical adjudication of causality. How we understand and interpret causality can change, therefore, without necessarily negating the social imposition of a ‘natural’ limit to what we consider as injuries that warrant redress.
This is precisely where things get thorny, at least where ACC reform is concerned. For many of its proponents, this reform (as well as ACC’s viability as an organisation) is contingent on line-drawing: limited resources, after all, mean a limited remit. To question the definitional basis on which the system specifies its coverage would amount to rejecting the constraints that make it operational, and doing away with such constraints risks undermining its very capacity to provide support and compensation of any kind. Qualifying the ‘no-fault’ principle, for example, or expanding the criteria for accidental injury causation to more adequately cover illnesses and disabilities, for another, may reintroduce a set of variables that threaten the shaky balance of a public scheme—including, worst of all, the right to sue. Putting aside more obvious (though no less pressing) questions around funding and government spending, one could pause to contemplate this peculiar insistence on retaining institutional mechanisms that limit our ability to relate to ailing bodies and make sense of the ‘accidents’ that befall them, ostensibly in order to save the institution itself.
I say ‘relate to ailing bodies’ rather than ‘rehabilitate’ because I don’t think the latter is ultimately the point for such institutions, practically or historically. Or, at least, it’s not the point on its own. Following recent strands in critical disability studies, we can maybe and at most describe rehabilitation as but a limited and temporary side-effect of a more generalised condition to which these institutions are a party: debilitation.
In the context of racial capitalism, this condition is produced systemically and endemically, and on the level of massification—or the level of whole groups and populations. This shouldn’t require spectacles of maiming and mutilation to be registered: we have only to recall that the atrophy and grinding down of bodies; their depletion not simply as productive but also social, relational, and co-creative beings; the wear and tear of simply getting on and getting by in unforgiving conditions; the experience of what can only be described as slow death—that is, of being worn out simply by the activity of reproducing life—all of these processes take effect on the level of the mundane and unspectacular. In capitalist societies, accidental injury is so often short-hand for the symptoms of this condition, and one which works, alongside the systems that spring up around it, precisely to stop people from naming the entities and forces responsible for their suffering.
While it’s not actually named in this way, this naturalisation of debility as an unremarkable aspect of modern life is doubtless central to most critical accounts of the accident. What makes these accounts particularly interesting in the works of people like Figlio and Pietz is the anthropological imagination they deploy, bringing the legal and medico-juridical innovations of the nineteenth century into stark relief against other and contrary social forms.
Within non-capitalist social relations, the idea of accidents has little purchase, since chance events usually act as collectively meaningful and symbolically charged markers of social and historical change. ‘Nothing could happen by accident,’ writes Figlio, ‘when every event is scrutinized for its place in the dense fabric of expectation’. In a cosmos teeming with extra-human agencies and forces, it makes little sense to speak of accidental injuries and illnesses. Of course, this view has often been harnessed to sensational and derivative accounts of the so-called primitive mind. But the latter are few and far between a more interesting and generative interpretation: that these cosmologies inculcate practices of naming and narrating which give collective significance and value to our afflictions, and which recognise that bodily capacity is neither singular nor given. They also work as collaborative projects whereby people find ways of articulating a collective response to seemingly inexplicable misfortune or to social crises whose scope and cause is beyond our comprehension as individuals. Put simply, they allow us to insist that the things that happen to our bodies actually matter in more ways than that which is sanctioned by capitalist orthodoxy.
As a global pandemic joins a long list of catastrophes that have simply become a fact of ordinary life, it seems more urgent than ever to revisit and reimagine the fictions governing the accident. Being a vestige of industrial and post-war compromises, the premise of accident compensation reflects a story of crisis ordinariness, as Lauren Berlant put it, that increasingly seems rather uncompelling. So too, do calls for reforms of the system which urge a return to some ideal model. A more holistic overhaul based on a different set of values and narratives altogether would not only be timely, but would also be in keeping with shifts in other areas of policy and advocacy, from welfare, to housing, and of course constitutional transformation. Conditions of debilitation, and the bodies that suffer them, deserve nothing less.
Image: Albert Sidney Bolles (1845-1939), Work accident in a mine