Two months ago (see Apr. 8) a workers' comp tribunal caused a furor in Australia by awarding $A28,000 to teacher Jeff Sinclair, who was fired over an affair with a teenage student. ("School for scandal", Melbourne Age, May 3). Now Sabina Sinclair, the educator's spurned wife, is also seeking compensation for psychological injury from the New South Wales education department over the incident. "I am really fragile," she said. (Martin Wallace, "Jilted wife seeks damages", Daily Telegraph/News.com.au, May 31).
Yes, it can happen: following the enactment of sweeping state-level liability reforms, the rate of personal-injury filings in Australia is way down and legal practices are closing or shrinking as business declines. In the state of Victoria, claims over public liability, assault, dog bites, slip-falls and school accidents have dropped sharply and a total of 19 medical negligence claims were filed in the six months to April 29, down from "hundreds of claims two years before". (Fergus Shiel, Melbourne Age, May 11). In the state of New South Wales, which includes Sydney, "The court's Chief Judge, Reg Blanch, said statements of claim had fallen from a record 20,784 in 2001 to just under 8000 last year. ...There are now only minor delays in bringing on a civil case, with the exception of motor vehicle claims, which require more documentation." (Michael Pelly, "Lawyers in job void as claims drop", Sydney Morning Herald, May 8). For more on the excesses which led to a public re-examination of "compensation culture" Down Under, see our Australia page.
Australia: 28-year-old James Samuel Steward, who "was serving a three-year sentence at Goulburn jail when he overdosed on illegally acquired methadone in May 1998", is now "suing the state for more than $4 million. ... His barrister, Barry Hall, QC, ... argued that among the department's breaches of duty of care was its failure to adequately manage the jail to prevent the entry of illegal drugs." (Leonie Lamont, "Ex-prisoner sues over drug disablement", Sydney Morning Herald, May 11). For a case in which a woman sued an American hospital for not preventing the smuggling of the illegal drugs on which she overdosed, see Jun. 27, 2003.
In Australia, an appeals court has "overturned a ruling giving $160,000 compensation to a woman who claimed she was discriminated against by not being allowed to work from home." Two years ago a tribunal ruled against the publisher of the Hansard parliamentary reports, saying it had unreasonably required subeditor Deborah Schou to attend work in person on days when Parliament was sitting although she had asked to stay home and work via modem. The appeals court, however, found the tribunal's view of the matter "inconceivable". (Ian Munro, "$160,000 workplace ruling overturned" , Melbourne Age, May 1).
Even the loser-pays principle wasn't enough to shield 78-year-old backyard gardener Vincenzo Tavernese of Hornsby, New South Wales, from a far-fetched claim by litigious neighbors claiming injury from the pesticides he used. "The growing popularity of no-win, no-fee law [in Australia] has led to an increase in litigation with little downside for the losing plaintiff. It has been a major driver of the liability crisis." (Miranda Devine, "Don't blame me, I'm just the lawyer" (opinion), Sydney Morning Herald, Mar. 4). The article drew responses in the form of letters that appeared in the SMH (one of which asserts that defendant Tavernese had the right to seek a costs security order in the litigation requiring the plaintiffs to show an ability to pay his fees if unsuccessful); a response by Ian Harrison SC defending contingency fees; and a discussion on the Slattsnews blog.
I'll be a guest on the Radio National Breakfast show, for a discussion of personal responsibility and obesity lawsuits (see various entries in product liability archives). The site's archive of stories from Australia is here.
Australia is in an uproar after a New South Wales teacher, Jeff Sinclair, won a A$28,000 payout for "psychological injury" for being fired for starting a relationship with a 15-year-old student a third of his age. The Department of Education has been ordered to pay him an additional A$317 a week until he finds "suitable" employment. The government is appealing. (Bruce McDougall, "Teacher's cash over student love", news.com.au, Apr. 5; Miranda Devine, "The teacher who played victim", Sydney Morning Herald, Apr. 8) (via Jacobs). Update Jun. 3: jilted wife wants damage from school authority too.
...draws ire in Oz. (Michael Pelly, "Lawyer's 27-hour day fuels calls to set legal bills to rights", Sydney Morning Herald, Feb. 4).
Jackaroos, the Australian counterpart of Western cowboys, have traditionally worn the bush hat known as an Akubra, but changes in the law may soon result in the substituting of hard hats instead. After a young jackaroo was thrown from a horse and killed, the New South Wales industrial safety authority pressed charges against the owners of the livestock station where he was working for not providing a safety helmet, and the owners have now pleaded guilty to the charges (Denis Gregory and Jim O'Rourke, "Jackaroo's death could spell the end for old hats", The Age (Melbourne), Nov. 30; "Curtains for Akubra after death?", AAP/Sydney Morning Herald, Feb. 2).
Australia: "The [Victoria] State Government has rejected triple murderer Paul Denyer's bid to have a sex change and will seek legal advice on whether he can be declared a vexatious litigant. ... This followed an unsuccessful bid for permission to wear make-up in Barwon Prison," in a legal action that (see Oct. 15) had been assisted by taxpayer-funded Legal Aid. (Andrea Petrie and Chee Chee Leung, "State turns down triple murderer's bid for sex change", Melbourne Age, Jan. 9).
Bad news for lawyers suing airlines over "economy-class syndrome" (see Dec. 13-14, 2000): an Australian court of appeal has disallowed a test case against Qantas and British Airways over the deep vein thrombosis suffered by a passenger after a long flight. Brian William Povey, a Sydney businessman, "had alleged that flight conditions -- including a confined and restricted physical environment, impediments to getting out of his seat, a lack of warning about the risk of DVT, and the supply of alcohol -- had caused his injury." (Peter Gregory, "DVT damages claims in doubt", Melbourne Age, Dec. 24). The judgment was consistent with a court decision in Britain; a U.S. federal judge in San Francisco, on the other hand, has allowed such claims to proceed (see Aug. 16).
Updating our Jul. 30 report: "A woman has lost a case in which she sued a pub where she had been drinking shortly before she crashed her car. ...Justice Gerald Cripps said the defendants did not have a duty of care 'to protect the plaintiff from the consequences of her own inebriation'." ("Judge finds against drunk driver who sued hotel", AAP/Sydney Morning Herald, Aug. 18)(opinion in Parrington v Hotelcorp Pty Ltd & Ors, New South Wales Supreme Court)
"Lawyers losing their jobs because of the NSW government's clampdown on public liability claims have received little sympathy from Premier Bob Carr. The government's tort law reforms have reportedly forced the closure of a whole floor of lawyers at one Sydney firm. And NSW Bar Association president Ian Harrison has warned that up to a third of barristers could lose their jobs.
"But the premier gave the lawyers short shrift, saying he would rather see money going to workers than lining legal eagles' pockets. 'Australia would have been put out of work if we hadn't reformed the tort laws and reined in this culture of litigation in NSW,' he said." ("Lawyers get no sympathy", AAP/Melbourne Age, Dec. 5).
"The Civil Liability (Personal Responsibility) Act and its amendments introduced caps and thresholds on compensation and shifted the balance towards greater personal responsibility to avoid long and expensive court cases. The result has been a sharp drop in casework for solicitors and barristers specialising in personal injury cases." (Alex Mitchell, "Get over it, Carr tells jobless lawyers", Sun Herald/Sydney Morning Herald, Dec. 7).
In one of Australia's most notorious mass murders, Julian Knight shot dead seven people and wounded 19 others in Hoddle Street, Melbourne in 1987. Knight was committed to prison where he developed into an inveterate filer of legal complaints which "have cost the Justice Department about [A]$250,000 in staff time and external legal expenses in the past two years alone", having pursued over that period 28 appeals as well as numerous freedom of information requests. (Ian Munro, "Hoddle Street mass killer faces court curb", Melbourne Age, Nov. 10).
Lifeguards: "One of Victoria's most popular surf beaches may be unpatrolled this summer as its lifesaving club struggles to pay the huge public liability insurance costs. The Torquay club will not put lifesavers on the beach this season if the State Government does not pass legislation protecting members and the club from litigation." (Stephen Moynihan, "Popular beach may have no lifesavers this season", Melbourne Age, Nov. 2). Pediatric surgeons: "Eighteen orthopedic surgeons and obstetricians have quit public hospitals in Sydney in the past week because of the Government's medical indemnity charge." (Ruth Pollard, "Children's surgeons quit, more will follow", Sydney Morning Herald, Oct. 2). Rural obstetricians (Lucy Beaumont, "Insurance fear on rural births", Melbourne Age, May 6). See David Little, "Left untreated, the indemnity system will cause more suffering", Sydney Morning Herald, Oct. 9; Richard Ackland, "In a row between doctor and lawyer, you know who the politician will call", Sydney Morning Herald, Oct. 31)
"If canonization of Australia's Mary MacKillop, who died in 1909, is taking a relatively long time, compared to that of Mother Teresa, six years dead, part of the reason is that Indians are less litigious." Among legal fears that might slow down the process at various stages: "A doctor who treated an individual might be miffed by claims that the cure had no medical explanation. There is also privacy legislation, which might be referred to by relatives objecting to church investigators nosing into the departed one's affairs. ... According to Sister Maria Casey, who is handling the processing of Mother Mackillop, 'it is not very easy these days because of threats of litigation'". (Malcolm Brown, "Saint? Call the lawyers", Melbourne Age, Oct. 27; longer version, Sydney Morning Herald) (& welcome Eugene Volokh readers; he says nice things about us)(& welcome Carnival of the Capitalists readers).
Australia: "An application by Victorian triple murderer Paul Denyer to wear women's make-up in prison was helped by taxpayer-funded Legal Aid, the state government said today. The 120kg killer, branded one of the most dangerous criminals in Victoria ... lodged an appeal with the Victorian Civil and Administrative Tribunal (VCAT) after his complaint of gender identity discrimination was rejected by the Equal Opportunity Commission (EOC) in August." ("Legal Aid helped make-up bid", AAP/Melbourne Age, Oct. 15). See update Jan. 10.
"Increasingly, Australians live in a society in which it is always someone else's fault; in which perpetrators masquerade as victims; in which personal responsibility has been replaced, all too frequently, by a readiness to lie, to sue, to redirect blame or, worse, to find scapegoats. ... It is a cruel irony of modern life that the only people who can regularly be relied on to accept -- indeed, to claim -- responsibility for their actions are terrorist bombers." Cites a certain website where "many examples of the lunacy of litigation are to be found". Our special section on Australian cases, covering stories since June of this year, is here; for stories before that date, use our search function. Our section on personal responsibility is here, with older items here. (John Huxley, "Not my fault", Sydney Morning Herald, Oct. 4)
"A prisoner who injured himself in a fall from his bunk bed has won more than $100,000 compensation from taxpayers. Craig Ballard, jailed for a vicious assault on a woman, successfully sued the State of NSW after he fell out of the bunk in his cell at Grafton Correctional Centre." (Tony Wall, "Ex-prisoner awarded six-figure sum", Daily Telegraph (Aust.), Sept. 1; Melbourne Age, Sept. 1; "Payout to prisoner who fell from bed 'ludicrous'", Sydney Morning Herald, Sept. 1). "The Opposition leader, John Brogden, said it was ludicrous the payout to Mr Ballard was double the amount available to a victim of crime." A new liability statute will make it harder for prisoners to file similar actions, but Ballard's claim was resolved under the earlier law ("Prisoner who fell from bunk could have got more: minister", Sydney Morning Herald, Sept. 2; "Prisoner who fell from bunk could have got more: minister", The Australian, Sept. 2; Tony Wall, "Word is out: sue the prison", Daily Telegraph, Sept. 2).
Down Under, Victoria's Attorney General has come out in favor of a pretty far-reaching set of legal reforms designed to protect consumers:
While it is appropriate that justice is blind, that does not mean the Bracks Government is blind to the needs of the Victorian public.
Updating our report of Oct. 16-17: "A man acquitted of murder because he was psychotic has won a $300,000 payout after suing a hospital for negligently releasing him into the community." (Louise Milligan, The Australian, Aug. 20). Supreme Court Justice Michael Adams "found Hunter Area Health Service and a psychiatric registrar had breached their duty of care by failing to detain [Kevin Presland] in Newcastle's James Fletcher psychiatric hospital." After Presland's release he brutally murdered his prospective sister-in-law, Kelley-Anne Laws. Justice Adams "noted that while it was generally unacceptable for someone to recover damages where they had committed a crime, in this case 'he was insane at the time of the killing and innocent of any crime'". The murder victim's mother "was devastated at yesterday's judgement. 'Don't give it to him,' said Christine Laws. 'Put it back into the mental health system to help people ... It was his choice to take marijuana, his choice to drink -- nobody else's. No one made him do it, yet the system sees fit to pay him. I can't understand the law.'" (Leonie Lamont and Miguel Holland, "Judge awards woman's insane killer $300,000", Sydney Morning Herald, Aug. 20).
Australia: a "truck driver has won the right to sue his former employer for not warning him that over-exposure to sunlight causes skin cancer." A lawyer who represented 71-year-old Eric Reeder "said it put employers on notice that sun protection was not just a worker's responsibility." (Adam Morton, "Truckie to sue boss over cancer", AAP/News.com, Aug. 16).
"Francine Parrington lost her arm when she crashed into a tree while driving with a blood alcohol level of 0.118 but says it wasn't her fault and is suing the hotel for serving her too many drinks. ... She crashed into exactly the same tree a year before and claims her drinking habits were caused by her marital difficulties with a straying husband." (Angela Kamper, "Drink-driver sues the hotel", Jul. 30)). They do seem to get a lot of these cases down in Oz, don't they? See, for example, the cases described in this space May 12. (Update Dec. 21: she loses case)
P.S. In Oslo, Norway, a court has just thrown out a man's conviction on charges of drunken driving on the grounds that he had been much too drunk at the time to give proper consent for the police to interrogate him; the resulting confession had provided the basis for the conviction ("Drunk driver acquitted for drunkenness", Aftenposten, Jul. 30)(via James Taranto's Best of the Web, OpinionJournal, Jul. 30).
Justice Peter Young, the Chief Judge in Equity of New South Wales, has warned estate lawyers "that if they continue to ravage estates by charging high legal costs, judges will step in and cap costs" and "that their fees may be in doubt if they allow big bills to be run up by 'claimants [who] are not particularly concerned about how much they get out of the estate as long as they ruin it for everybody else'." In his warning, published in the latest Law Society Journal, Justice Young cited "a case in April where a son had claimed against his father's $240,000 estate. The estate paid the son's legal costs - $40,000 - as well as its own $16,000 bill. The son ended up receiving a $60,000 legacy from the estate." Also arousing public ire of late have been a case last week in which "a woman was awarded a $60,000 legacy from her father's $1.5 million estate, with Supreme Court Master John McLaughlin commenting that the costs were 'excessive': $74,500 for the woman and $130,000 for the estate", as well as the case reported in this space Feb. 18-19, 2002, in which lawyers' fees ate up $112,000 of a $154,000 estate, leaving only around $30,000 for the contending parties. (Leonie Lamont, "'Sloppy' lawyers warned their costs may be capped", Sydney Morning Herald, Jul. 28).
"The High Court stunned doctors yesterday with a landmark finding that a surgeon who bungled a woman's sterilization is liable for the cost of bringing up her child to the age of 18." Kerry Melchior's son Jordan is perfectly healthy, but she sued Queensland ob/gyn Dr. Stephen Cattanach and the state health department because the tubal ligation he had performed had not prevented pregnancy as intended. (Cynthia Banham, Sydney Morning Herald, Jul. 17). Dr. Andrew Pesce, who chairs the Australian Medical Association's professional indemnity task force, said "the decision was a part of a pattern where doctors' liability was gradually increased over time, so that 'nobody actually knows what their obligations are'". For similar American cases, see Apr. 26-28, 2002.
Escalating liability had already provoked an insurance crisis for ob/gyns Down Under, as in the States; especially hard hit are women practitioners who often maintain less than a full-time practice but must pay hefty flat-rate premiums anyway (Wendy Tuohy, "A labour of love becomes labour too hard, and too risky", Melbourne Age, Jul. 5). Among those quitting is Dr. Denise Koong, though some of her patients have "begged her to reconsider, saying things like: 'Give me the paper and I'll sign it, I will promise not to sue you!'" Trouble is, the courts (certainly in the U.S., and we presume in Australia these days as well) toss out such written promises as unenforceable.