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Werribee Gorge Accident 10-May-2006 At 10:16:46 AM Ronny

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On 10/05/2006 Chalk Free wrote:
>A legal team
>will argue that an accident was negligence and create doubt so that they
>will win the case and get a massive payout.

This is a ridiculously generalised statement.
1. The argument put by the plaintiff's legal team does not determine the outcome of the matter. The defendant's legal team will presumably argue that negligence was an accident, and the Judge (or jury in the US) sorts out where the truth lies. Even if you were right in one particular case, the same could presumably be said of the defence in another case, and the whole thing would even out and we'd have a generally fair system. The reality is its an adversarial system, so the lawyer is simply doing their job.

2. Its not quite as simple as 'creating doubt' makes it sound. You don't just go before a judge, say 'negligence, negligence, negligence', and then he/she says 'well I have some doubt, so you can have the cash'. In a civil matter (as opposed to a criminal one) the standard of proof is the 'balance of probabilities'. This means that if its more likely than not that its negligence, that's what will be found, but if its more likely than not that its an accident, then that's what will be found. Of course there will be errors, but given the even nature of the standard of proof, one would expect them to even out over time.

3. You don't just get a massive payout because you won the first step of the argument. You have to show loss (that is able to be quantified) and you are compensated for that loss. As kerro... said, there's 5 elements to making out the cause of action, damage is the last one. If you show damage (or 'loss'), you get 'damages' equal to your loss. Damages are assessed by a judge.

This is in contrast to the position in the US where the jury assesses damages, and can grant punitive damages. Punitive damages are awarded to a plaintiff to punish the defendant (as the name suggests). This accounts for some of the massive payouts in the US. However even there many of the payouts are not as much as they are reported in the press. Most states have statutory maximums for punitive damages, however juries will sometimes award outrageous damages and this is what's reported, this will be reduced to come in line with the statutory maximum.

An issue to consider also is contingency fees. This an area where I agree that lawyers have something to answer for. But you must bear in mind that merely claiming that a supposed increase in our litigous nature is a case of us becoming more 'americanized' ('z' used intentionally) ignores the differences between the systems. Juries and punitive damages are one difference, but another major difference is that in the US contingency fees are common. This works so that the lawyers only get paid if they win, and they get paid a percentage. The problem is that this causes the lawyers to become less independent, and to give them a stake in the outcome of the litigation. In Australia contingency fees are allowed, but (at least in SA, but I think in other states also) they can not be a percentage. If the case is won the fee must be a set rate as it would have been if the contingency system had not been used.

Just getting on your soapbox about the increasingly litigous nature of Australian society doesn't do much to address how the balance is to be struck. What about those who are justifiably aggrieved as a result of another's behaviour? You must make these complaints specific (and suggest appropriate changes). (By which I mean - please get back on that soapbox. A good law debate to keep me interested is just what I need on chockstone today).

cheers
James