First, a guy gets awarded $4.3 million dollars for injuries he received after crashing his car while speeding:
So, despite the presence of signs warning of the roadworks and advising slower speeds, despite the fact that the guy was 20 over the limit on a narrow country road, and despite the fact that the judge himself conceded that the idiot wouldn’t have slowed down anyway, he still gets over 4 million bucks.
Then there’s the guy who got $3.75 million for diving head-first into a sandbar:
Anyone who had spent any time on beaches knows how impermanent sandbars are. They can shift quite quickly with changes in tides, winds, and other conditions, and their presence is not always obvious even to experience beachwatchers. If we keep getting decisions like this, Sydney councils might just throw up their hands, erect “Enter water at your own risk” signs on all the beaches, and stop offering any services or oversight at all, including lifeguards.
As people on this board might be aware, i’m no fan of the type of gung-ho tort “reform” advocated by many self-interested politicians, businesspeople, and professional groups in the United States. I believe that a legal system that allows people to seek redress for the wrongs done to them is an essential part of society, and i’ve argued that position on these boards many times. But, fuck me, the system does lead to what appear to be some pretty fucked up decisions—decisions that completely ignore any issue of personal responsibility and risk assessment.
I’m not arguing that the cases in question are instances of legal inconsistency or improperly-applied legal doctrine; i don’t know enough about Australian tort law. I’m just saying that they offend my sense of what is right, and my notion of the level of personal responsibility that people need to take for their own decisions and actions.
I guess stupidity respects no borders. I was hoping that at least (between fits of laughter) the rest of the world was watching and learning from Our (U.S.) mistakes and lunacy. I guess not. :smack:
mhendo, there has been a significant amount of tort reform in all of the states and territories of Australia over the past couple of years precisely because of government and community disquiet at the large, questionable damages awards seen in cases such as Swain v Waverley Municipal Council. There have been lots of arguments covering the notions of personal responsibility, “Santa Clause” juries and judges, the increasing resort to American “deep pockets” litigation practices etc.
The original judgement in favour of the plaintiff in *Swain * was handed down in the NSW Supreme Court in May 2002. It was then overturned in April 2003 by the NSW Court of Appeal. I’m not sure exactly what the High Court’s reasoning has been in reversing the Court of Appeal’s judgement. The HCA’s full judgement runs to 60 pages and I haven’t ploughed through it all yet.
I’ve had a chance to skim through the High Court’s judgement. It’s a close decision (3-2). Gleeson CJ, Gummow J and Kirby J allowed the appeal. McHugh J and Heydon J dissented.
The decision turned on issues of law rather than the facts in this specific case and therefore presumably will not alter the current state of the law in Australia relating to the duty of care, reasonable forseeability, standards of care required etc. Gummow J summarises this by saying at paragraph 110:
“It should be added immediately that this is not a case in which this Court is required to determine the extent of the duty of care of municipal authorities to swimmers who use beaches in their local government areas. Nor will this appeal determine in general terms what is required of local authorities in exercising reasonable care for the safety of beach-goers. The issue in this case is narrower; simply put, it is whether the Court of Appeal correctly applied settled principle in setting aside the jury’s verdict”.
Kirby J also saw the actions of the Court of Appeal as the key issue. At paragraph 211 he states:
“Approaching this appeal…can it be said that error has been shown on the part of the Court of Appeal to justify the intervention of this court?”
He concludes that the decision by the majority of the Court of Appeal was flawed in that it it substituted the judges’ opinions on a matter of fact where the jury was perfectly capable of interpreting the same facts (paragraph 221):
“Once again, with respect, the analysis by the majority constitutes an explanation by them of what *they * considered the flags, put in place by the Council’s employees, signified. That was not the correct approach. The issue is how *the jury * could have understood the information conveyed by the position of the flags, not how appellate judges interpreted them”.
So, basically, the majority judges on the NSW Court of Appeal stuffed up.
I read about the guy who dove into the sandbank tonight. There was something so wrong with that. Then on the front page of the local, some people are trying to ban peanut paste in schools! WTF?
mhendo, my step-brother is the ranger for Lithgow City Council, and as such is almost a para-legal. He informed me in 2000/2001 sometime that the australian state of New South Wales is the second most litigious jurisdiction in the world after California.
My lawyer dad always explained that the main reason Australia didn’t have as many stupid legal cases as the US was the loser pays rule we have, where if I sue and lose I have to pay the other persons legal fees.
Is that not the case any more, does that not come into play for some reason in these cases, or was he simplifying too much when he explained it to me at 15?
Yeah, my beef was not with the High Court, which seemed to be basically ruling on the procedural issues from the lower courts. It was more of a general dismay at the extent to which some of these judgements seem to be getting out of hand and into the realms of the silly.
As i suggested above, i have no problem with a system that allows redress against the negligent or the malicious, and i think we need to maintain the ability to sue in cases like these. It’s the level of the judgements that i’m concerned about, and the fact that, while they claim to have taken the victims’ own negligence into account, they still send a message that if something bad happens to you then, no matter your own culpability, there’s always someone else to blame.
I think there also needs to be some sort of no fault system that, in cases like the beach incident, helps the injured party while acknowledging that we, as individuals, need to assume certain risks when we undertake activities like diving into the surf, and that we can’t always blame someone else for our misfortune. And in the case of the driver, i think if you’re going to ignore warning signs and drive 20 clicks over the limit then you need to be prepared to suck it up if you lose control of your car.
Peanut *paste * is the Queensland usage for peanut butter. And yes, there have been the same discussions in NSW about banning peanut butter from schools due to the increasing incidence of peanut-related allergies.
Which is all well and good intentioned, but a bit extreme, but the alternative to peanut paste they had on the front page of the paper, was mashed baked beans and cream cheese. Yuck!
