THE NSW Bar Association has had its say on cost saving devices aimed at increasing the efficiency of dust related diseases compensation claims.
It made several recommendations in its submission, but stated it was vital to ensure the legitimate interests of the parties were adequately protected, whatever changes were made.
Above all, the NSW Bar Association stated, special features of litigation involving the terminally ill should be recognised.
Junior vice president of the association, Anna Katzmann, said the Bar felt that alternative dispute resolution was the best solution wherever possible, and had proposed that the Dust Diseases Tribunal rules be amended to give the Tribunal the power to order compulsory mediation. In particular, the paper states all cross-claims should be the subject of compulsory mediation.
Ideally, Katzmann said, the proportion of responsibility to be borne by each defendant should be determined “before the case resolves, not after the judge has determined liability, to make it easier and cheaper”.
“Reducing the issues reduces the costs,” she said.
The Bar took a different position from that adopted by the Australian Lawyers Alliance in its submission, which suggested that victims be asked to file sworn statements early in proceedings, as a method of cancelling out lengthy and expensive pre-trial procedures.
Katzmann said the Bar believed there were certain “deficiencies” inherent in this approach, as it could be unfair to hold “people who are sick and dying to a sworn version of events”, which may have been taken when they were under stress due to a recent diagnosis, or extremely unwell and on narcotic medication.
It does, however, see “real value” in providing defendants with an account of the extent of the plaintiff’s exposure, including exposure for which they don’t intend to sue, to allow the defendant adequate preparation.
“If there is a sworn affidavit early in the piece, it is almost inevitable an additional one will be entered later,” Katzmann said, which would most likely lead to cross examination on any discrepancies in the two documents, encourage litigation and increase costs.
The Bar “generally opposes the referral of cases to single experts”, as the medical issues are often contentious. “A single expert assumes there is no difference of opinion between two experts,” Katzmann said. However, in this field there are different opinions held amongst thoracic physicians and oncologists about the extent of exposure that can cause cancer, and also about the guidelines for diagnosis, she said.
The appointment of a single expert would deliver an individual point of view that was possibly “out of step” with the majority or a respected minority and could work to the disadvantage of one or both parties, she added.
It was also likely to be “counterproductive” as each party would have to retain its own expert to advise on the viewpoint of the single expert, another unnecessary expense.
Katzmann said responsibility for cost cutting didn’t rest with any one party, but lawyers could be held up to scrutiny through the Supreme Court’s rules that require parties to make reasonable admissions.
If everybody took a sensible approach to making appropriate admissions, she said, the number of issues, and therefore the costs, would be reduced.
Katzmann concluded that the sooner a workable system for reducing legal and administrative costs was established the better, but stressed the Bar’s concern that whatever “steps the government takes, it recognises that this is a jurisdiction where there are some unique features, and it is important to bear those in mind when coming to a decision”.
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