THE AUSTRALIAN Capital Territory could serve as a model for other states and territories as a result of its “commonsense” approach to tort reform, the peak body representing the Australian legal profession said last week.
Speaking at the inaugural conference of the ACT branch of the Australian Lawyers Alliance, Law Council of Australia president John North said the Stanhope Government displayed a cool-headed approach during the so-called insurance ‘crisis’ of 2002.
“In many ways, the ACT could serve as a model for other states and territories. Although not perfect, changes made in the ACT were certainly in stark contrast to those which afflicted neighbours in Queanbeyan, across the NSW border,”
North argued that some of the changes to compensation law in this country did not deserve to be labelled ‘reforms’. “Arbitrary restrictions on compensation, particularly thresholds on payouts for pain and suffering, are hardly changes for the better — which is what ‘reform’ meant last time I looked,” he said.
The approach taken by the ACT, where there is no threshold on pain and suffering, is proof that many of the reforms made to compensation law in other states and territories had been drastic and unnecessary.
The ACT also has no thresholds, caps and damages for gratuitous care, North said, “and yet the ACT doesn’t seem to have been blown away by any litigation explosion”.
North said the Law Council believed balance must be restored to personal injury laws so they are fairer to Australians who are injured as a result of negligence. “I believe that lawyers who are in States and Territories that have taken a more equitable approach to tort reform — and the ACT is a good example — have an important role in being ambassadors for balance,” he said.
This has been a long-held debate between the insurance industry and many within the legal profession. The Chief Justice of the Queensland Supreme Court, Paul de Jersey, joined the Australian Lawyers Alliance president earlier this year to express concerns over reforms to personal injury legislation.
In an address to the LAWASIAdownunder2005 conference in March, de Jersey articulated a widely held opinion that changes to personal injury legislation had gone too far, suggesting that personal responsibility had to work both ways.
De Jersey dismissed claims that there had been an “explosion” of personal injury litigation. While he acknowledged there had been some increase over the last two decades, he said “in fact in very recent years, civil filings in the courts have generally reduced”.
He noted that prior to the recent legislative reforms, it was said that the courts had been tightening their approach to negligence, and were expecting a “higher level of personal responsibility in those suffering injury”.
Australian Lawyers Alliance president Tom Goudkamp also said the courts had been making it harder to obtain compensation. Personal injury lawyers are aware that over the past four or five years negligence has been more difficult to prove, he said.
Goudkamp argued that “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.