There Must Be Someone We Can Blame, Surely?...

What stands out in all of this is that it is a very complex matter – there is not a simple single solution and not everyone will be in total agreement with whatever action is taken.  The fact of the matter is that remedying the problem will take time, and it will require the co-operation and determination of all parties involved. 

The situation I find most interesting is that public liability insurance responds to common law actions where it is claimed negligence has contributing to injury or property damage.  Therefore it is common law actions that have the greatest bearing on the availability and cost of public liability insurance.  No one can possibly disagree with the fact that the issue we are discussing here is causing immense problems for our society, yet to my knowledge, and I do not profess to be an expert in law, the principles of common law now are basically the same as they have been for centuries.  Therefore these problems we are now facing are not brought about by any legislative or legal change, they are brought about by the change in our society.

I have been involved in providing insurance and managing risks in sport for 23 years.  In all that time society generally has acknowledged that Australia was becoming more litigious.  Those of us old enough to be playing sport 20 years ago can reminisce about how back in our day you accepted the fact that in participating in an activity you may get injured.  If there was an injury, you didn’t go around looking for someone to blame so that legal action could be instigated.  Have changes to legislation changed this situation?  Not to my knowledge.  Society has changed the situation by its expectation that if something goes wrong we need to blame someone else 

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(often someone who is trying to make a voluntary contribution to that same society) and seek compensation.

Now I realise that we cannot live in the past – times do change and we need to change with them.  Aspects of safety perhaps were not always up to scratch in years gone by – it has been necessary to lift the standard in regard to our duty of care; what was considered “reasonable” 20 years ago quite rightly would not necessarily be considered “reasonable” today. 

Many, including myself, consider however, that the pendulum has swung too far the other way.  There have been judgments made in the courts where the expectations in regard to the defendant duty of care go far beyond what the average citizen would consider to be “reasonable”.  (library articles appearing on the IEA web page look at some of those decisions).  By the same token there has been some recent decisions where the action has not been successful, which gives us confidence that perhaps the system is appropriate.

The fact is that people can take legal action whenever they want to.  If that comes about by responding to advertising by “ambulance chasing” lawyers, then so be it.  The critical factor is the decisions that are handed down by the courts.  If these cases are treated on their merits, take into account voluntary assumption of risk and with decisions being made on what society generally considers to be an acceptable interpretation of “reasonable” (both in terms of whether compensation should be paid and the amount of such compensation), then I don’t see how we can argue with that system.  Nothing will have a bigger impact in reducing costly litigation than having decisions go in favour of the defendant with costs awarded against the parties taking the action.

Continued ....