THERE WILL be less for lawyers but more for victims as a result of the New South Wales Government’s review into the legal costs associated with asbestos cases, released last week.
The Review of Legal and Administration Costs for Asbestos Victims was called for by the ACTU, Unions NSW and victims’ groups and recommends changes that will make mediation more efficient and therefore reduce costs and increase the chance that victims will receive appropriate compensation.
The Law Society of New South Wales has welcomed the review, which it says has adopted some of its own key recommendations. “Asbestos victims deserve proper compensation, and to have their claims dealt with efficiently. The Review has clearly rejected the claim by James Hardie that legal costs were disproportionately high,” said president John McIntyre.
A substantial amount of legal costs associated with claims are tied up in defendants arguing over their share of the responsibility for a claimant’s illness, according to NSW Premier Bob Carr. “These reforms will save time and money by placing greater emphasis on resolving claims through settlement or mediation rather than litigation,” he said.
The new system will require defendants to resolve the issue of responsibility before mediation begins. If they cannot agree, an independent person will intervene and make a decision. “This is a major reform that will do away with scores of lawyers, representing different defendants, arguing the case with the claimant and with each other,” said Carr. He said it was a “major win” for everyone.
The changes will cut “unnecessary” legal and administrative costs, said Carr, and will ensure money is instead made available to victims through compensation, “instead of going into the pockets of lawyers”, Carr said.
The Law Society of NSW had recommended that there be early and complete information exchange between the parties and an early mediation of cases, both key measures adopted by the Government.
“We also support the recommendation to reduce court filing fees. The Society believes that the high level of court fees generally has become an impediment to people seeking access to justice,” said McIntyre. The Society will not analyse the report in detail and said it looks forward to its early implementation.
Reforms to the common law system of determining dust diseases compensation will be most effective if detailed information from the claimant is presented with the statement of claim, which is essentially a disclosure system. As well, it’s suggested that defendants are required to respond to this information or request more information quickly and well before mediation, that there be simpler medical examination requirements, that if a claim is not settled by informal means the parties will be required to participate in mediation.
Also, if mediation fails, the parties will be required to agree to a list of issues genuinely in dispute, which will then be determined by streamlined litigation in the Dust Diseases Tribunal.
Further consultation is required on much of the detail of the proposed scheme, the Review stated. It recommends the Government urgently convene a meeting of defendants and insurers in the jurisdiction to discuss these issues further, with the view to later consider further legislation.