AS THE FIRE in the debate about tort reform in Australia has all but petered out, one of the peak bodies leading the debate has had a change of leadership.
The Australian Lawyers Alliance, which has been a significant player in the condemnation of changes to injury compensation schemes in some parts of the country, has replaced Tom Goudkamp as national president. Canberra solicitor Richard Faulks last week took over the role.
The organisation would continue to focus on the “urgent” need to address some of the major shortcomings of tort reform, Faulks said last week.
Reflecting on his term as president, Goudkamp told Lawyers Weekly the Alliance had over the past year “got our message across” about changes to person injury law, with “more and more 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.
“I think we have plugged away and received a fair bit of credibility. People listen, and we are the voice of injured people,” he said.
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].”
Faulks has a new board, with some members of the previous board remaining. He is to continue the push for a wind-back of tort law reform, making sure there are no more reforms that hurt injured people. “We are pushing for actual tort law reform,” Goudkamp said.
As well, Faulks is to embark on a push for a bill of rights in all jurisdictions beyond the ACT, an aim Goudkamp also stood for.
“The Lawyers Alliance is also particularly concerned about moves by the Federal Government to remove the rights of workers in relation to industrial relations and possible workers compensation,” said Faulks.
The issue of tort reform has been a long-running one for the Australian Lawyers Alliance. At the LAWASIAdownunder2005 conference earlier this year, the issue came to the fore. In a speech to the conference, Goudkamp said the courts had, for some time, been making it harder to obtain compensation. Personal injury lawyers were aware that over the past four or five years negligence had been more difficult to prove, he said.
At the time, his views were reiterated by Queensland Supreme Court Chief Justice Paul de Jersey, who also echoed those made by NSW Chief Justice James Spigelman and High Court judge Michael Kirby. De Jersey said changes to personal injury legislation have been driven by political and insurance industry objectives, rather than being based on fact.
“Claims that recovery had become too easy were substantially just that — claims, unsupported by any comprehensive, compelling data from which that conclusion could sensibly be drawn,” de Jersey said.
Goudkamp said: “All Australian governments have been duped by insurers and the medical profession into believing that the sudden massive escalation of public liability and professional liability premiums was caused by an explosion of litigation”.
“The politicians accepted, without question, that the laws of negligence and damages had to be radically changed to ensure that insurance premiums were reduced. They actually pampered themselves into believing that the tort law reforms would persuade the insurers to lower their premiums,” Goudkamp said.