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Need to guard individual rights

Peter Carter, Courier Mail, 27 December 1996

The Kennedy Commission of Inquiry which started in April and the ensuing WorkCover Act which was passed this month arose out of fears that the workers compensation fund had a "massive" unfunded liability.

Opponents of the changes said the fund shortfall was not solely the result of increasing claims but rather a number of other issues including mismanagement, poor underwriting, government taxes, unrealistically low premiums, unaccountability of reckless employers and premium evasion.

Some estimates put the combined effect of this at $150 million a year.

Many unions and community groups said that even had the fund been $290 million in surplus rather than in deficit as alleged, these massive drains on the fund ought to have been addressed as a priority.

The most significant issue which the Kennedy critics raised, however, was that the report did not address the very reason for workplace injury: workplace negligence. The report acknowledged that it did not address safety issues and stated that the inquiry'' terms of reference did not permit such an analysis.

Under criticism on these issues, Industrial Relations Minister Santo Santoro conceded that the total annual cost to the community of Queensland workplace injuries was $3.5 billion.

Another surprising statistic revealed by a secondary inquiry conducted under the umbrella of the Kennedy commission was that as few as 132 employers (out of a total of 189,000) were responsible for 30 percent of claims.

Given such compelling statistics, it is somewhat surprising that such a sustained attack was made on common law damages, the total costs of which are $110 million a year.

Why? The following observations might provide some explanation.

From the point of view of lawyers who represent the injured, the debate was rooted in fundamental issues. The debate was between those who believed in the value of individual rights and freedoms and anti-rights campaigners.

The latter see such rights as expensive accessories which can be ditched at the first sign of rough going. The anti rights group comprised mainly business leaders who were accorded a virtuous status as if they spoke in the interests of all.

Their "wisdom" was venerated in the press and resulted in any challenger to it being branded a heretic.

There can be no doubt that from the business side the arguments also carried a vicious attack on the lawyers who represent the injured.

It is not surprising that the litigation successes of the ordinary person over a rich or more powerful opponent attract resentment of the lawyers involved.

Such resentment breeds, retaliation, a lashing out by ridicule, scorn and then attacks on the system itself for "permitting" these outcomes.

I would also suggest that from many quarters the attack on the system of awarding of damages was motivated by a resentment of the fact that "ordinary" people are elevated by their lawyers to the same status in the dispute as the most powerful insurer or corporation.

Those who are already socially powerful resent the wider community being empowered in this way.

Not only were the damages awards and the lawyers attacked but so was the legal system itself.

Kennedy even gave "examples" in a press commentary of an out-of-control legal system, such as a man being awarded substantial damages for being unable to work but being able to change a tyre for a distressed motorist on his way home from court.

His "examples", although unsubstantiated, have the capacity to take on the proportion of urban myth. Like other myths and pub talk, the stories will be embellished in every retelling.

The attacks made by business leaders have, however, a more pernicious effect. Whether intended or not, such attacks leave the civil justice system vulnerable, with an ultimate outcome of altering the legal system so fundamentally that the individual no longer will have meaningful access to it.

To achieve this outcome business first needs to seduce the public into believing the denigration of the justice system is "correct". This was exactly what was attempted in the workers compensation debate.

Although I would be surprised if business leaders had plotted such an outcome at the outset, their campaign certainly had all the hallmarks of one capable of leading to that conclusion.

Employer groups used a sophisticated campaign to flood the Kennedy commission with more than 100 submissions. They even used the Internet to hustle up anti-rights submissions.

Such a campaign was at the least designed to distort and convey a false impression that Queenslanders supported an attack on their fundamental rights.

Queenslanders can be proud of the commitment and energy which consumer lawyers have demonstrated on the issues. Partly as a result of their efforts the 15 percent threshold was not imposed. Other serious curtailments of basic rights are, however, now law.

Queenslanders must remain vocal and demonstrate convincingly to their legislators that basis rights are to be valued and should not be interfered with for the benefit of balance sheet bottom lines or political expediency.

Peter Carter is the Queensland president of the Australian Plaintiff Lawyers Association and a Brisbane Injury Lawyer