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Posted on 10/01/2002 9:01:22 AM PDT by Tumbleweed_Connection
Damages awards for pain and suffering would be capped nationwide at $250,000 under a sweeping overhaul of negligence law designed to stem the growth in insurance costs and make it harder for people to sue.
The final report of a panel appointed by the Federal Government to review liability laws also recommends that lawyers be limited in what they can earn from small personal injury cases and that the test be tightened for negligence action.
Councils and other public authorities would be given a new "policy" defence to fight claims for road deaths and injuries arising from potholes and deteriorating highways and footpaths.
This defence would allow them to counter liability claims by arguing that they had acted within budget constraints and with regard to other service requirements.
Thirty-four recommendations by Justice David Ipp and his panel, focusing primarily on limits to personal-injury payouts and claims costs, were presented to the Assistant Treasurer, Helen Coonan, on Monday.
The 254-page report will be considered by state and territory ministers at today's insurance summit in Sydney.
Yesterday, lobbying intensified ahead of the summit with plaintiff lawyers urging the governments to proceed with extreme caution and accusing the insurance industry of blackmail.
"Insurers are returning to profitability without the help of tort reform," the president of the Australian Plaintiff Lawyers Association, Rob Davis, said.
The insurance industry in turn attacked the credibility of an Australian Competition and Consumer Commission report which found insurers would be back in the black for most insurance classes by next year.
The Insurance Council of Australia sent all ministers an analysis which it commissioned suggesting that predicted profit levels had been incorrectly tabulated.
However, in its drive to rein in liability payouts, the review by Justice Ipp urges governments to introduce a uniform cap on claims that goes further than legislation introduced by NSW in April. The Carr Government has already introduced caps and thresholds on general damages, restrictions on legal costs and limits on the way some lawyers can advertise.
For all claims made since March 20, damages for pain and suffering are capped at $350,000 and are not awarded at all for injuries amounting to less than 15 per cent of total incapacity.
Justice Ipp's panel recommends that general damages for personal injury claims be capped at $250,000 in line with limits in the Northern Territory ($250,000) and South Australia ($240,000).
The reforms would only affect calculations of awards for pain and suffering and loss of enjoyment of life and have no effect on money that might be awarded to cover future medical expenses.
The review endorses the principles that individuals must take responsibility for their actions and that they meet the same standards of care for themselves as the courts require of others.
Last year the High Court decided to remove the immunity of highway authorities from liability caused by lack of maintenance.
The Ipp review supports the findings of a NSW parliamentary inquiry last week which endorsed the High Court decision. However, it says the decision has given rise to some unintended consequences and that a new defence needs to be allowed where councils have limited financial resources to prevent road accidents and "trips and slips".
The recommendations of the first and second reports of the Ipp review are designed to form the basis of uniform legislation to be implemented nationally.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Not while there's a Democrat majority in the Senate.
Still, might never happen. Depends on the strength of the lawyer lobby Down Under...
I'm sick of these misleading titles. Injury payouts are not capped. The only thing being limited is the unquantifiable "pain and suffering." If your injury resulted in a million dollars in doctor's bills, that is still recoverable. The 250 grand is above and beyond that.
I don't think that's in the Australian constitution.
(Don't worry, I also just realized this was Australian legislation).
Hmm, you might wanna be careful about that too: Coffee: Spilling the beans on quality
I agree, it's not enough for what you describe. You would need to recover all costs and expenses (i.e., economic costs) of your injury, including medical care, lost income and convalecense. That is typically not limited by such proposed caps (if it was, I would be opposed). Like I said, the caps apply to that which is unquantifiable and that is where the abuse often occurs.
Now, is $250,000 enough to cover "pain and suffering" once all of your other expenses have been covered? Who can answer that? Obviously, no one is going to volunteer to be hit by a car to collect 250 grand. But should such awards be open ended, just because no price can be applied to suffering?
But do you trust the federal levathian to put a price such awards? It seems to me that more democratic thing to do is to let 12 citizens who have heard the evidence be the ones to put a price tag on it.
That said, legislation in various states setting caps on non-economic damages is something I can live with. I'm not saying it has to be 250K, it could be double or triple that. Each state legislature can decide what the cap can be, or have no cap at all. Folks that want the protection of unlimited damages for pain and suffering can move to those states, and hope that there are enough businesses that stick around to hire them (or start their own business, and purchase lots of liability coverage).
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