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Phelps, Greg --- "President's page: The rights of the wrongfully injured" [2016] PrecedentAULA 14; (2016) 133 Precedent 3


By Greg Phelps

This edition of Precedent focuses on catastrophic injuries, and I thank our authors for the analytical depth of the articles within. The Australian Lawyers Alliance (ALA) has long advocated for the protection of injured victims’ rights to compensation under common law principles. Common law has been increasingly swept away by the tide of legislative regimes that cover personal injuries in motor accidents, workplaces and elsewhere over the past three decades. Together, no-fault schemes and changes to the principles of compensation have undermined legal principles that evolved with modern civilisation.

Too often it seems that ‘tweaks’ in various legislative schemes around the nation – for example, the different threshold percentages for whole person impairment – are set with a view not to preserve the legal rights of injured people but to benefit government ledgers. When it comes to determining rights under the law, the ALA’s firm view is that if it’s a choice between the mediocrity of modern governments and the accumulated wisdom of common law, the latter should prevail; especially for those who have been wrongfully injured by the acts or omissions of others.

A fundamental principle of common law is of restitutio in integrum – damages should be assessed to restore a plaintiff ’s actual loss: Livingstone v Rawyards Coal Co (1880). It is acknowledged that in most personal injury cases, it is not possible to award monetary compensation to cover noneconomic loss and restore a plaintiff to health. The principle that strives for comprise is stated as ‘so far as money can do so’: Robinson v Harman [1848].

Recognising that compensation will not be perfect, Justice Dixon said in Lee Transport Co Ltd v Watson (1940):

“... the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damage in terms of money.”

By design, no-fault, capped schemes result in substantially reduced compensation for many negligently injured victims, who previously enjoyed common law entitlements. Modern legislation seeks to restrict victims’ benefits to care and management rather than provide adequate compensation and restitution. Under siege is the victims’ ability to decide their own future and direct their own care on receipt of common law compensation. Catastrophically injured victims suffer severe physical restrictions and to remove their self-determination is piling on a further disability and, literally, adds insult to injury. Basic principles of justice and fairness that have evolved over centuries are being swept aside to balance the public books, ultimately leading to a poorer quality of life for victims.

Victims of catastrophic injury might be divided between those whose injury arose from another’s negligence and those who have no one else to blame. In seeking to care for all victims, the aim should be to maintain their dignity, self-determination and independence. For those who have been harmed by another’s negligent action, such an aim is an entrenched legal right ‘as far as money can do so’.

If the setting of compensation is moved to allocation by statute, that which is to be paid is determined by governments and not by the courts. The benefit of legal history and principles entrenched by the rigour of case law is subsumed by the vagaries and whims of our elected members; the certain demise of stable and continuous justice speaks for itself. The legal rights of wrongfully injured victims depend on constant review by our courts.

Insurance is another topic associated with personal injuries. On 7 March 2016, ABC’s 4 Corners program exposed Comminsure for its outrageous ‘wriggling’, deserting sick and dying claimants in the name of profit. As plaintiff lawyers, we regularly witness our clients being confronted with this type of conduct. There is a tension of interests in insurance claims that is demonstrably heightened by the removal of lawyers acting for claimants. A stated aim of no-fault schemes with capped payouts is to reduce legal costs; what is not stated is that it is not only legal costs that are likely to be reduced, but also payouts to victims. ALA has lent its support to the calls for a Commission of Inquiry into the conduct of Comminsure and other insurance companies.

Greg Phelps is a Partner with Ward Keller in Darwin. EMAIL

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