Pendulum swinging back to rights for injured to seek redress

26th Oct 2012

For the first time since the media announced a “public liability crisis” in 2002, the pendulum is starting to swing back towards the rights of the injured to redress within our courts, lawyer Travis Schultz told the Australian Lawyers Alliance National Conference in Glenelg today.

The decade-long crisis, largely attributed to 9/11, poor insurance risk assessments and perception of an overly litigious society, has resulted in increased insurance profits, but an erosion of rights and benefits for those injured through no fault of their own.

Mr Schultz, who provided a Public Liability Case Review at the conference, said judges, like any other community members, were influenced by community perceptions and so not immune to the fall out of a perceived continuing crisis.

“The onus of proof, particularly in trip and falls, is still on plaintiffs, but there is a definite softening of interpretation of an avoidable injury,” Mr Schultz said.

“In 2001, when handing down its decision in Brodie v Singleton Shire Council, the High Court made it clear that people would ordinarily be expected to exercise sufficient care by looking at where they were going and in perceiving and avoiding hazards. And Justice Callinan in Ghantous was perhaps most vociferous in his imposition of a high duty of care on the part of pedestrians themselves saying:

‘The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this’."

Mr Schultz said while Justice Callinan believed a very high standard should be imposed upon a pedestrian, Justices Gaudron, McHugh and Gummow were at least prepared to accept some allowances should be made for oversight.

“It was not long after the Brodie and Ghantous decisions that the perceived liability crisis resulted in new Civil Liability Acts introduced around the country to reduce the prevalence and cost of public liability claims,” Mr Travis said.

He said in the two years following the decisions in Brodie and Ghantous, only 17 out of the 42 cases that met his definition of a “trip and fall public liability claim” were successful. That equated to a success rate of only 40.5%.

“Since then, claims by plaintiffs in similar cases have met with mixed fortunes, but if the statistics are to be believed, there has either been a more selective approach by plaintiff lawyers in the claims that they take to trial, or there has been a softening in the approach of the judiciary – or a little of both.”

In 2011, the success rate of claims by plaintiffs in these public liability scenarios was 70% and in the 12 months leading to publication of Mr Schultz’s paper on the subject, 19 out of 30 decisions (63.33%) had been successful.

“Perhaps even more telling are the statistics in Australian appellate courts where in the last 12 months, out of the seven decisions dealing with claims of this nature, five (71.43%) of the verdicts have been in favour of the plaintiff,” Mr Schultz said.

At the time of the alleged crisis, blame was also levelled at lawyers and a society said to be becoming increasingly litigious, and made it next to impossible to litigate for anything but extremely serious injuries in most Australian jurisdictions.

In 2007, Justice Ipp, the main author recommending tort reform, admitted since such reforms were introduced, “Certain of the statutory barriers that plaintiffs now face are inordinately high”.

“The reality is that tort reform and a lessening of corporate responsibility meant less investment by businesses in injury avoidance practices and a shifting of the financial burden onto both the injured and the taxpayer following an injury.

“It seems that in the wake of a global financial crisis and insurance companies’ unsympathetic approach to the victims of cyclones, floods and earthquakes, the pendulum of community values and expectations – along with the judiciary – is swinging back the other way,” Mr Schultz said.

Tags: Compensation Civil liability Access to justice