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The Forum > Article Comments > The myths and realities of a litigation-mad culture > Comments

The myths and realities of a litigation-mad culture : Comments

By Helen Pringle, published 28/11/2007

Money or justice? Bernie Banton fought for a remedy to rights that had been wronged.

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I have heard it said by a lawyer, that where there is money, there is a lawyer.

However in some areas there are no unions to bargain for the employee, or the public has no possibility of being able to change the system directly, so litigation is the only possible way to change a system.

Education is one such area. Many teachers carry out very backward practices, a number of teachers have highly discriminatory attitudes, particularly towards male students, and the public also has no say in how many schools are being run.

Meanwhile the teachers do not want performance pay. So if the teachers donít perform, then money could always be taken from them.
Posted by HRS, Wednesday, 28 November 2007 9:33:29 AM
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What price is a life?

if it were mine, all the money in the world for my family is not enough, im going to die.

I can see the problem with this litigation mad culture, but when it comes to responsibility, particularly in the case of causing someones death, there is no compensation that is compensation enough.

What we need to fix is this: any non life threatening or non permanent injuries should be dealt with on a smaller scale with an arbitrator away from the court system. This can be wrapped up quickly and lawyers dont get the financial benefit of a slow legal system, and this is where the greatest volume of claims is.

We should also change the law in regard to the regulation of no win no fee lawyers. all of these agreements should be registered with the relevant state body to ensure the naive ant being taken for a ride form the sharks. My mother got a 52,000 payout for a car accident and after fees and costs, she was left with $2,000. she was entitled to a much larger payout but because it involved more work from the lawyers, she was pressured into accerpting. It was a mere excersise for fees from the firm with no regard for the outcome for the client.

You get refused entry to a nightclub now and there are lawsuits filed, with no win no fee lawyers climbing over themselves for the windfall. It is rediculous.

If we can tackle these 2 issues, our society will not end up down the US road. It is black and white what can be done to curb it, but who wants to have a go at these issues when you have governments protecting lawyers like prized pigs.
Posted by Realist, Wednesday, 28 November 2007 10:15:32 AM
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Helen, while "ubi ius ibi remedium" is quite rightly a foundation stone of the right of the individual to take action where wrong exists, there is also a maxim "hard cases make bad law".

This does not overturn "ubi ius", but points out that it is not smart to generalize from the specific - in this case, to cite the obvious pain of poorly-served asbestos victims as evidence against our increasing tendency to litigious behaviour, and our willingness to seek first to blame others for our misfortunes.

Howard, Abbott and the rest of the pollies may be guilty of clumsiness on this, but they are quite correct when they point out that the direction we are taking is unhealthy. But matching their sweeping statements with equally broad generalizations about our right to justice doesn't help much.
Posted by Pericles, Wednesday, 28 November 2007 11:00:49 AM
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Nobody would wish Bernie Banton's ill health and subsequent death on anyone else but, and it is a big but, that did not stop him and others politicising the issue. It was an issue politicised by the union movement and Labor in general.
Employers very definitely have responsibilities and James Hardie failed in theirs but, and again it is a big but, employees also have responsibilities to carry out their work in a responsible manner. How often have we seen workers using noisy machinery without ear-protection, or working in the sun without a hat, using equipment that should only be used wearing goggles or failing to wipe up a mess on a floor?
Tort law seeks to spread the damages. It does not take real responsibility into account. An employer will be found liable simply because they are seen as having a greater capacity to pay. Sometimes it can be simply unfair.
For all he is being treated as some sort of hero Bernie Banton was also a political tool. His last political stunt was just that, a stunt - and it needs to be recognised as such.
Posted by Communicat, Wednesday, 28 November 2007 1:05:06 PM
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Lawsuits can serve a valuable purpose in forcing private or public authorities to lift their game. Politicians like to use the coercive powers of the State to collect money, ostensibly to provide for our infrastructure and defence, and to deal with our social and environmental problems, and then divert the money to electoral bribes where it will do them the most good. Meanwhile our roads, trains, hospital emergency rooms, etc. deteriorate.

One example where lawsuits are doing some good is with the "hearse chasing" lawyers in California.

http://www.time.com/time/magazine/article/0,9171,987233-1,00.html

By looking at death certificates, they were able to uncover cases where nursing home patients had died of neglect. They then went to the relatives offering to run lawsuits on a contingency fee basis, with some big payouts resulting. Sometimes the problem might have been corruption, since what is small change to the nursing home proprietor is likely to be a fortune to the middle class inspector. The main problem, though, seems to be that people's savings are quickly exhausted and governments don't want to then pay what decent care would cost. The inspectors are then put under pressure from their supervisors to softpedal abuses.

Putting up with some frivolous lawsuits is a small price to pay, if the lawsuits lead to better, safer emergency rooms, for example.
Posted by Divergence, Wednesday, 28 November 2007 1:49:13 PM
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The concept of compensation for wrongs suffered is an established precept in law, however, the concept of personal responsiblity appears to be neglected.

When a council is sued for millions because someone injures himself jumping into the sea, the people who ultimately pay are the taxpayers of the area. The person injured is paid in full for all medical expenses, future earnings loss and tidy penalty for pain and suffering. His role is not factored in.

Child care costs up to $100 per day. The insurance premiums can be up to $30 of that. The people paying are the moms and dads struggling to make a living.

As there is little definition as to the liabilities one can be exposed to, the insurance premiums are extensive. Legislation limiting or proscribing payouts would enable insurance companies to eventually reduce premiums.

I would be prepared to limit my possible payout to a reasonable figure for a lower day to day cost of living.
Posted by Shadow Minister, Thursday, 29 November 2007 11:47:30 AM
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