This week is Law Week. This is a national week to improve community understanding and appreciation about the role our system of justice plays in all of our lives.
It seemed fitting to take the opportunity to address common misconceptions I hear both within the broader legal profession and among non-legally qualified friends and acquaintances about personal injuries litigation.
“People get too much money when they sue”
We hear this all the time. Our Judges are compared unfavourably to Santa Claus and lawyers as grubby and greedy in encouraging people to make silly claims.
In reality, our compensatory system means that each individual recovers the amount of damages for which they can show a loss. Insurers and courts will not pay or award damages without evidence that the plaintiff has sustained the loss and that the loss was caused by the injury.
This can vary substantially between different people who suffer the same injury. My sprained foot last year caused me almost no lost work time. If it had happened in compensable circumstances, I would have recovered no more than $500 of physiotherapy costs. The exact same injury sustained by a carpenter would have resulted in at least 8 weeks of lost earnings – most of which would not have been covered by sick leave. If he or she had permanent foot instability (which I may have without knowing given that I do not need to traverse building sites often), it may reduce their ability to work full days on building sites because of pain or fatigue thus reducing their ability to accept overtime.
The largest awards for damages are for young people who have permanently lost their ability to work and who require carers to assist them with the activities of daily living.
“It is unkind to expect people to be perfect – when someone makes a mistake, you should just move on”
This advice I give to my children in the playground. Of course we need to “move on” when someone makes a mistake but personal injuries litigation is not a form of retribution. We do not need to demonize the defendant who meant us no harm. Many motorists are deeply distressed when they cause an accident which injures someone.
I hear this comment a lot from doctors. I understand where they are coming from. Many doctors work long days and feel they are held up to an unrealistic standard. I agree that we should not expect doctors to be perfect nor vilify many years of excellent work in the event that they make a mistake.
However, whenever someone is injured, there is a cost. The process of making a claim for damages is determining where that cost should lie. Should it lie with the injured person, the person who caused the injury or the state? The law has developed a series of tests for determining where the loss should lie in each case.
“People suing their bosses has imposed a terrible cost on industry”
Historically, workplace deaths were accepted as part of the cost of doing business. Thankfully, we have moved on from there in Australia at least.
Our workers’ compensation regime in Queensland, together with the regulatory role of the Division of Workplace Health and Safety has been designed to ensure that the cost of workplace injuries are properly costed within the product being created. Ideally, workplaces will be designed in such a way that no one is injured at work.
If people are injured in a workplace, the cost of those injuries should be reflected in the price of the product. Otherwise, our economy is standing on foundations of sand.
Small businesses are not usually interested in the macroeconomics. However, it is important to remember that workplace health and safety measures are not always expensive. In many cases, conducting work more safely is just a matter of doing things differently.
“Instead of running to their lawyer, people should learn to take responsibility for their own actions”
In my experience, people do not “run to their lawyer” without very careful reflection. There is a general reluctance to see a solicitor. Sometimes this is because of fear but many of my clients are embarrassed about making a claim for fear that they might be “whinging” or litigious.
The law does require people to take responsibility for their own actions. If a person is injured entirely as a result of their own actions, they will not have a claim for negligence. We rarely have inquiries from people who have been injured entirely as a result of their own actions.
Contributory negligence is a principle of law which reduces a plaintiff’s damages by the extent to which they contributed to the accident or the extent of their injuries. For example, a cyclist who is not wearing a helmet when he is struck by a car may not have contributed to the accident occurring but may have contributed to the extent of his injuries by failing to wear a helmet. His damages will then be reduced to take into account the extent to which his injuries could have been avoided by wearing a helmet.
“We should not have compensation claims because people just lie”
Regrettably, some people do lie. Insurance fraud, perjury and lying in a sworn statement are very serious offences but I have come across people who have been prepared to commit those offences in an effort to increase the amount of their claim twice in 21 years of practice in personal injuries litigation.
I do not believe that we have any reliable statistics of the extent of fraud in personal injuries claims. However, it is clear that the overwhelming number of people do not lie. Many accidents are independently verifiable and it is difficult to mislead doctors even if plaintiffs want to do so.
“We should have a system like New Zealand so that people do not have to prove their case”
New Zealand has a “no fault” system of compensation. Although I do not have a detailed knowledge of how the scheme works, I have had clients who have used the scheme in New Zealand.
Superficially, the attractions of the New Zealand scheme are obvious. Of course it would be better if no one needed to prove that they had suffered their injuries as a result of someone else’s fault. It would be better if everyone got paid what they have lost and did not need to prove their case.
Unfortunately it is clear that the “no fault” scheme has major shortcomings. Comments I have heard are:-
- The amount recoverable is very limited. People are not compensated for their loss of earnings so it appears to be no more than a version of Centrelink and Medicare.
- It is human nature to resent the at fault person not having any consequences for their actions. Injured people seeking retribution are demanding more prosecutions than they were prior to the introduction of the no fault scheme. I have written before about the limitations of our criminal justice system to redress injustice. It is much kinder to seek compensation than it is to seek to vilify and prosecute an individual for a mistake.
- Without the threat of litigation, safety standards have declined particularly in public infrastructure.
The public can have the utmost confidence that our courts consider each case fairly based on the evidence that is presented.
Happy Law Week everyone!
