One of the most frequent arguments raised against the Common Law system is that we simply can not afford the cost.
Inability to bear its ongoing price has been the justification for the introduction of statutory schemes in many states for motor vehicle and workplace injuries. The reasoning goes that an administrative scheme without the overheads of judicial determination leads to major savings on the cost of insurance and preserves the compensation fund.
This contention acknowledges that there will be casualties of the arbitrary determination by such a scheme but says that this is a worthwhile cost for the major benefits that can be achieved by eliminating the overheads of the subjective approach which occurs in judicial determination.
Business is ranked ahead of the individual under this thinking as it is the lower insurance cost that is invariably credited as the most tangible benefit of such arrangements.
We are repeatedly confronted with these arguments notwithstanding the many examples demonstrating that no fault and other administrative schemes are neither cheaper nor more efficient than the common law. In workplace injury compensation for example, the state with the highest average employer premiums, South Australia, has no common law access. New Zealand, which has had a national accident compensation scheme and no common law access for injury for nearly 30 years, is seeing a system degraded by higher premiums and lower benefits in an effort to finance the long tail in payouts.
Another of the theses against common law culpability is that it wrongly subrogates the notion of personal responsibility to a culture of seeking blame in others. Put another way, this theory contends that one should accept life’s trials and tribulations and that the attribution of liability is morally inappropriate both for the victim and the community.
That injury victims should turn the other cheek to reckless wrongdoers is an argument as conceited and arrogant as those who propose it. It has no support among the injured. Despite the susceptibility of the public to the manipulation by vested interests, damages recipients are strong opponents to the abolition of court awarded damages.
Similarly these proponents deliberately obscure the discriminating nature of the common law and its concepts of causation, forseeability and apportionment. Rather than a blunt instrument for attributing guilt manipulated by lawyers as it is portrayed, our civil justice system is in fact a delicate and refined tool for fairly distributing responsibility among all.
That the community is harmed by blame falling where it fairly should, denies the consequences of subsidising injurious practices. Fairness and economics demands that the cost of injury be borne by the responsible party. Anything less is a market distortion - protectionism that perpetuates the unsafe conduct and causes the resulting injuries to proliferate.
With workplace and transport injuries alone exceeding an annual cost of $50 billion to the Australian economy, one would have thought that a system that discourages injury, accounts accurately for its cost and fairly compensates the victim was highly desirable.
The third popular justification for the removal of common law determination of wrongs is to reduce the role of lawyers.
Lawyers are a dispensable item in an administrative compensation model, it is said. Such argument proceeds not in reason, for lawyers are very much needed to protect against the excesses of bureaucracy, but in emotion.
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