THE CHIEF JUSTICE of the Queensland Supreme Court, Paul de Jersey, and the Australian Lawyers Alliance president last week expressed concerns over changes to personal injury legislation across the country.
In an address to the LAWASIAdownunder2005 conference, 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 a recent “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”.
De Jersey 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 noted in a speech at the conference that the courts had, for some time, 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.
De Jersey’s concerns, which echo those recently made by NSW Chief Justice James Spigelman and High Court judge Michael Kirby, suggest that 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 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.
Despite Insurance Council of Australia (ICA) claims to the contrary last week at a meeting of the Standing Committee of Attorneys General (SCAG) on the Gold Coast, de Jersey agreed with Goudkamp that the promised reductions in insurance premiums have not occurred.
“Time having progressed, we are now in a better position to assess the social justification for what has occurred. The theory, that insurance premiums would reduce, has apparently not been borne out,” he said.
De Jersey rejected claims that the reforms would force individuals to reassert responsibility for their own actions. He said that such responsibility should work both ways. “A difficulty about these provisions, arguably, is that they suggest the wrongdoer is to a degree being protected,” he said.
“The effect of these provisions is that an injured claimant subsidises the costs of cutting insurance premiums. Those who act negligently are practically relieved of the consequences of their default, as is their insurer, to the detriment of the victim of their negligence, and possibly the broader community,” he said.
Goudkamp also expressed concerns about the damage to responsibility as a result of the reforms, suggesting that the incentives given to corporations to protect others had been reduced.
“I hope that one day governments will be brought to account for this unnecessary tort law reform when it becomes clear that negligently injured accident victims will not be compensated for injuries caused by collapsing bridges, faulty fairground equipment, wet and dirty supermarket floors, defective products, inept doctors, dangerous balcony railings, and other preventable disasters,” he said.
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