Graycar, Reg --- "Public Liability: A Plea for Facts" [2002] UNSWLawJl 45; (2002) 25(3) UNSW Law Journal 810
[*] Professor of Law, University of Sydney. I should like to thank Jane Wangmann for her assistance with preparing this presentation, and reworking it for publication, and Professor Harold Luntz for allowing me to rely so heavily on (and to reproduce) the data in his jointly authored text Harold Luntz and David Hambly, Torts: Cases and Commentary (5th ed, 2002). This paper was originally prepared for a discussion forum held at New South Wales Parliament House, Sydney, 23 September 2002.
[1] Information about the Review of the Law of Negligence is available at Review of the Law of Negligence (2002) Department of the Treasury <http://www.revofneg.treasury.gov.au/content/home.asp> at 20 November 2002. The Second Ipp Report was released on 2 October 2002 and incorporates the first Ipp Report in full.
[2] A consultation draft of the Bill was released in September 2002. This was revised and presented to Parliament in October 2002. The Civil Liability Amendment (Personal Responsibility) Bill 2002 (NSW) was passed by the Legislative Assembly on 30 October 2002 and by the Legislative Council on 19 November 2002. At the time of publication, it was awaiting assent.
[3] See Jason Katsoukis, ‘Crackdown on Injury Payouts’, Australian Financial Review (Sydney), 21 January 2002, 1.
[4] The social security system has also increasingly been amended to avoid any possibility of ‘double dipping’: see Social Security Act 1991 (Cth), pt 3.14 ‘Compensation recovery’.
[5] Luntz and Hambly, above n *, 2002.
[6] Ibid 4. Figure 1 derived from Australian Institute of Health and Welfare, Australian Hospital Statistics (2000) table 9.6, ‘Separations by External Cause in ICD-10-AM Groupings and Place of Cccurrence, All Hospitals, Australia, 1999–2000’.
[7] Ibid 6. Figure 2 derived from Australian Bureau of Statistics, Disability, Ageing and Carers: Accidents and Injuries – Common Causes of Disability (1999) table ‘People Aged 18 and Over With a Disability [whose main condition was caused by an accident or injury] … by Where Accident or Injury Occurred’.
[8] Luntz and Hambly, above n *, [1.1.9] citing Marie Delaney, ‘Some Characteristics of Personal Injury Claims in the New South Wales District Court’ (1995) 8 Civil Issues 1 (Bulletin of the Civil Justice Research Centre). See also Donald Harris et al, Compensation and Support for Illness and Injury (1984) 50–1 and see more generally 45, ch 2, ‘Who Claims Compensation: Factors Associated with Claiming and Obtaining Damages’.
[9] Luntz and Hambly, above n *, 8 (fn 23) citing Delaney, above n 8.
[10] Panel of Eminent Persons, Review of the Law of Negligence Final Report (2002) [1.4].
[11] Ibid [1.6].
[12] Luntz and Hambly, above n *, [1.1.10], citing the Motor Accidents Authority of NSW, NSW Motor Accidents Scheme Large Claims (1997).
[13] Ibid 10; J R Cumpston, Report to the Structured Settlement Group (2000), citing Coopers & Lybrand, Structured Settlements — Legislative Project (1997).
[14] Luntz and Hambly, above n *, [1.1.11] extracting Australian Bureau of Statistics, Disability, Ageing and Carers 1998: Summary of Findings (1999) 7, table 11 (Cat No 4430.0).
[15] Ibid. See figure 3. See also P S Atiyah, The Damages Lottery (1997).
[16] Some papers and reports and submissions to the Ipp Panel have canvassed these factors and others: eg Australian Competition and Consumer Commission, Second Insurance Industry Market Pricing Review (2002), <http://www.accc.gov.au/pubs/publications/industry/Insurance%20report_Sept2002.pdf> at 17 November 2002; David Kehl, Liability Insurance Premium Increases: Causes and Possible Government Responses, Current Issues Brief No 10 2001–02, Department of the Parliamentary Library, Information and Research Services (2002), <http://www.aph.gov.au/library/pubs/CIB/2001-02/02cib10.pdf> at 21 November 2002; Rosa Lozusic, Public Liability, Briefing Paper No 7/2002, NSW Parliamentary Library Research Publications (2002) <http://www.parliament.nsw.gov.au/prod/web/phweb.nsf/frames/parliamentaryservices> at 25 November 2002.
[17] Ourcommunity.com.au, ‘Are Community Groups Getting Ripped Off on Public Liability Insurance?’ (Press Release, 25 March 2002), <http://www.ourcommunity.com.au/article/view_media_list.do> at 5 November 2002.
[18] Australian Health Ministers Advisory Council Legal Process Reform Group, Responding to the Medical Indemnity Crisis: An Integrated Reform Package (2002) (chaired by Professor Marcia Neave AO).
[19] Ibid [3.1].
[20] Ibid [3.5].
[20] For a review of the debate about the efficacy of a tort-based system, versus a no fault system see Luntz and Hambly, above n *, [1.3.25]–[1.3.27].
[22] New South Wales Law Reform Commission, Report on a Transport Accident Scheme for New South Wales, Report No 41 (1984) ch 3; New South Wales Law Reform Commission, Accident Compensation: Issues Paper, Issues Paper No 2 (1982), especially [3.14]–[3.26].
[23] Mundy by his Tutor Mundy v Government Insurance Ofice of New South Wales (1995) (Unreported, Supreme Court of NSW, Spender AJ, 5 June 1995).
[24] Australian Health Ministers Advisory Council Legal Process Reform Group, above n 18, [2.9].
[25] The other is of course loss of earning capacity.
[26] Grifiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, 170–1.
[27] Ibid.
[28] For a critical discussion see Reg Graycar, ‘Women’s Work: Who Cares?’ [1992] SydLawRw 4; (1992) 14 Sydney Law Review 86; Reg Graycar ‘Love’s Labour’s Cost: The High Court’s Decision in Van Gervan v Fenton’ (1993) 1 Torts Law Journal 122.
29 Civil Liability Act 2001 (NSW) s 16(2).
[30] See data cited in Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act: The First Three Years (2000) ch 6, <http://www.law.usyd.edu.au/teaching/2001/famlawref95_report> at 21 November 2002.
[31] Reg Graycar, ‘If it Ain’t Broke Don’t Fix It: Matrimonial Property Law Reform and the Forgotten Majority’ (Speech delivered at the NSW Bar Association Public Forum, Sydney, 20 May 1999), <http://www.familycourt.gov.au/papers/html/graycar.html> at 25 November 2002.
[32] Reg Graycar, ‘Law Reform by Frozen Chook: Family Law Reform for the New Millennium?’ [2000] MelbULawRw 29; (2000) 24 Melbourne University Law Review 737.
[33] Miriam Cosic, ‘Uncivil War’, The Australian Magazine (Sydney), 21–2 August 1999, 15, 20.