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Top judge joins ‘lawyer lobby’ against tort reform

Top judge joins ‘lawyer lobby’ against tort reform

QUEENSLAND’S TOP judge has continued his attack on restrictions in personal injury law, claiming last week that legislation has “brought about marked erosion of … a fundamental right to…

QUEENSLAND’S TOP judge has continued his attack on restrictions in personal injury law, claiming last week that legislation has “brought about marked erosion of … a fundamental right to adequate compensation for injury”.

Speaking at a Queensland conference of the Australian Lawyers Alliance, Chief Justice Paul de Jersey said there is a “critical” need for active reconsideration of whether the “so-called reforms have proven justified, or should be wound back”.

This is not the first time the Chief Justice has expressed concerns over changes for personal injury legislation. In an address to the LAWASIAdownunder2005 conference last year, de Jersey articulated a widely held opinion that changes to personal injury legislation had gone too far, and suggested that personal responsibility had to work both ways.

While dismissing claims that there had been an “explosion” of personal injury litigation, de Jersey acknowledged that there had been some increase over the last two decades, but said “in fact, in very recent years, civil filings in the courts have generally reduced”.

In his speech last week entitled ‘Tort Law Reform in Queensland: was it necessary, is it fair and who has benefited from it?’, de Jersey criticised two Queensland statutes of recent years, which have “significantly interfered with the awarding of compensation to those who have suffered injury because of the actionable fault of another” — including the Personal Injuries Proceedings Act 2002 and the Civil Liability Act 2003.

While conceding that whether of not the legislation remains in its current form is a matter for the parliament and the executive government, de Jersey endorsed “the articulation of a push for reconsideration”. He urged reconsideration, particularly at the judicial level, “where the courts were, I believe unjustifiably, presented as the ‘whipping boys’ for reform”.

“This legislation was, as we know, part of a national scheme. Having participated three and four years ago at its inception, Queensland’s involvement is presumably not entrenched, and I have to say that I am reassured to discern an emerging acknowledgement that the time is ripe for its reconsideration.”

He said he was pleased that the Attorney-General of Queensland has continued the process of review set up by her predecessor, with submissions from interested parties. “I have read the submission of the Queensland Law Society, the thrust of which I would support. It is in my respectful view important that that process be pursued to a conclusion,” he said.

But in Tasmania, attacks on workers compensation have not been running smoothly in the past weeks. The insurance industry last week slammed a campaign in that state to lessen workers compensation restrictions. Deputy Chief Executive of the Insurance Council of Australia, Dallas Booth, said the Tasmanian “law lobby” is misleading the public about injured workers’ entitlements under the state’s workers compensation scheme.

“The lawyer lobby is all about common law damages and has no regard to recovery from injury and returning people to work,” Booth said. “Insurers would welcome an honest debate on the Tasmanian workers compensation scheme.”

Across Australia, the Australian Lawyers Alliance has been a significant player in the condemnation of changes to injury compensation schemes in some parts of the country, led by national president, Canberra solicitor Richard Faulks and former president Tom Goudkamp.

Goudkamp told Lawyers Weekly: “More and more [people are] agreeing tort reform was a knee-jerk reaction, created by the insurance industry rather than an explosion in litigation”.

He said there were more people saying tort law reform was unnecessary and that proper rights to compensation needed to be restored. “There have been a lot of senior commentators, including ACT Supreme Court’s Justice Terry Connolly, and justices Michael Kirby, Paul de Jersey, and James Spigelman and some politicians,” said Goudkamp.

He rejected claims that there had even been tort law reform, arguing there had been no reform. “Reform is supposed to denote something good. This is tort law retrenchment. I cringe every time I hear [the term tort law reform].”

Chief Justice de Jersey said the restrictions to personal injury compensation “fall to be assessed against what had previously been accepted as axiomatic — that is, that a person injured through the fault of another should be adequately compensated by that other”.

He said that while in the “ordinary course of human affairs” it has been insurance companies that have come to foot those bills, it was insurance companies that “stridently led the charge for reform, which led to the establishment of the (Ipp) Negligence Review Panel”. In 2002, the Panel’s “riding instructions” lead to the recommendations for reform, “which crystallised in legislation from State to State — including, in Queensland, the legislation just mentioned”.

The Chief Justice called for a right to compensation, “in an amount not generous, not parsimonious, but adequate”. He argued that this was a “simple corollary” of an individual’s right to personal safety and security.

“Our right to personal freedom is of course subject to our correlative responsibility not to deny or diminish the freedom of others, and that extends, in broad terms, to embrace the physical integrity of the human body.”

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