The myths and realities of a litigation-mad culture

Ralph Nader concurred that the reform had not brought about lower insurance premiums, and argued that “tort reform” was more appropriately called “tort deform”. In No Contest: Corporate Lawyers and the Perversion of Justice in America (1996), Nader and Wesley Smith wrote, “The tort deform movement is a brazen effort by corporations and politicians beholden to corporate interests to pull off - under the guise of a ‘common sense’ reform - a nationwide perpetual bailout for polluters, swindlers, reckless health care providers, and makers of tobacco, defective vehicles, dangerous drugs, and many other hazardous consumer products”.

The movement for tort reform rested on a ritualised recitation of horror stories featuring outrageous payouts for minor injuries, the set piece being the McDonalds cup of coffee story. Such “legal legends” have been assiduously exposed by University of Wisconsin law professor Marc Galanter in particular. For example, in a 1998 article in the Arizona Law Review, Galanter argued that the proliferation of these legends portray the legal system as “arbitrary, unpredictable, berserk, demented”, with an explosion in litigation “unravelling the social fabric and undermining the economy”.

On the contrary, however, it is the tort reform movement fostered by, in turn, Bush, Howard and Carr that threatens to undermine a bedrock principle of justice at law, the ancient principle of ubi ius ibi remedium, the principle that for every right there exists a remedy. Or as Billy Hughes expounded the principle at Versailles: to every wrong there is a remedy. That is, if a person’s right has been violated, they are entitled to a claim to rectify the wrong done to him or her.

This principle was famously vindicated in the case of Ashby v White. The case concerned a cobbler named Matthew Ashby, who turned up to cast his vote for the British Parliament in December 1701. Ashby was turned away on the grounds that “he was no settled inhabitant of the borough, and had never contributed either to church or poor” (Ashby v White [1703] 1 Bro PC 62, 1 ER 417 (HL 1703), at 62-63.) Unlike other “poor indigent persons” of the parish, Ashby refused to take this lying down and sued for substantial damages.

His suit was successful, but the House of Commons found Ashby guilty of a breach of parliamentary privilege for having carried through his action at common law. Chief Justice Holt then upheld Ashby’s appeal, arguing that what was at issue was “a most transcendant thing, and of an high nature”: “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy” (Ashby v White 2 Ld Raym 938, 92 ER 126 (1703), at 953 (136), per Holt CJ).

Chief Justice Holt went on to counter the view that the courts would be clogged if Ashby were allowed his verdict: “And it is no objection to say, that it will occasion multiplicity of actions; for if men will multiply injuries, actions must be multiplied too; for every man that is injured ought to have his recompence. Suppose the defendant had beat forty or fifty men, the damage done to each one is peculiar to himself, and he shall have his action” (Ashby v White 2 Ld Raym 938, 92 ER 126 (1703), at 955 (137), per Holt CJ).

That is, the availability of a remedy cannot depend on the (great) number who claim it. The underlying idea is that the ubiquity of a wrong does not lessen the strength of a claim to its remedy. One might as well argue for the abolition of the common law itself as to argue against that principle.

Before he died, Bernie Banton praised the great Australian trade union movement for having supported him in his fight for recognition of his right and his remedy - alongside other workers wronged by James Hardie. It was a right and a remedy that John Howard and even his Labor premiers fought to whittle down, in defiance of law and of justice.