“A prisoner who injured himself in a fall from his bunk bed has won more than $100,000 compensation from taxpayers. Craig Ballard, jailed for a vicious assault on a woman, successfully sued the State of NSW after he fell out of the bunk in his cell at Grafton Correctional Centre.” (Tony Wall, “Ex-prisoner awarded six-figure sum”, Daily Telegraph (Aust.), Sept. 1; Melbourne Age, Sept. 1; “Payout to prisoner who fell from bed ‘ludicrous'”, Sydney Morning Herald, Sept. 1). “The Opposition leader, John Brogden, said it was ludicrous the payout to Mr Ballard was double the amount available to a victim of crime.” A new liability statute will make it harder for prisoners to file similar actions, but Ballard’s claim was resolved under the earlier law (“Prisoner who fell from bunk could have got more: minister”, Sydney Morning Herald, Sept. 2; “Prisoner who fell from bunk could have got more: minister”, The Australian, Sept. 2; Tony Wall, “Word is out: sue the prison”, Daily Telegraph, Sept. 2).
Posts Tagged ‘Australia’
News from Far Off
Down Under, Victoria’s Attorney General has come out in favor of a pretty far-reaching set of legal reforms designed to protect consumers:
While it is appropriate that justice is blind, that does not mean the Bracks Government is blind to the needs of the Victorian public.
Australia: “$300,000 payout for psychotic killer”
Updating our report of Oct. 16-17: “A man acquitted of murder because he was psychotic has won a $300,000 payout after suing a hospital for negligently releasing him into the community.” (Louise Milligan, The Australian, Aug. 20). Supreme Court Justice Michael Adams “found Hunter Area Health Service and a psychiatric registrar had breached their duty of care by failing to detain [Kevin Presland] in Newcastle’s James Fletcher psychiatric hospital.” After Presland’s release he brutally murdered his prospective sister-in-law, Kelley-Anne Laws. Justice Adams “noted that while it was generally unacceptable for someone to recover damages where they had committed a crime, in this case ‘he was insane at the time of the killing and innocent of any crime'”. The murder victim’s mother “was devastated at yesterday’s judgement. ‘Don’t give it to him,’ said Christine Laws. ‘Put it back into the mental health system to help people … It was his choice to take marijuana, his choice to drink — nobody else’s. No one made him do it, yet the system sees fit to pay him. I can’t understand the law.'” (Leonie Lamont and Miguel Holland, “Judge awards woman’s insane killer $300,000”, Sydney Morning Herald, Aug. 20).
Oz: trucker can sue over skin cancer
Australia: a “truck driver has won the right to sue his former employer for not warning him that over-exposure to sunlight causes skin cancer.” A lawyer who represented 71-year-old Eric Reeder “said it put employers on notice that sun protection was not just a worker’s responsibility.” (Adam Morton, “Truckie to sue boss over cancer”, AAP/News.com, Aug. 16).
Another Aussie drunk driver sues
“Francine Parrington lost her arm when she crashed into a tree while driving with a blood alcohol level of 0.118 but says it wasn’t her fault and is suing the hotel for serving her too many drinks. … She crashed into exactly the same tree a year before and claims her drinking habits were caused by her marital difficulties with a straying husband.” (Angela Kamper, “Drink-driver sues the hotel”, Jul. 30)). They do seem to get a lot of these cases down in Oz, don’t they? See, for example, the cases described in this space May 12. (Update Dec. 21: she loses case)
P.S. In Oslo, Norway, a court has just thrown out a man’s conviction on charges of drunken driving on the grounds that he had been much too drunk at the time to give proper consent for the police to interrogate him; the resulting confession had provided the basis for the conviction (“Drunk driver acquitted for drunkenness”, Aftenposten, Jul. 30)(via James Taranto’s Best of the Web, OpinionJournal, Jul. 30).
Australia: estate lawyers warned on fees
Justice Peter Young, the Chief Judge in Equity of New South Wales, has warned estate lawyers “that if they continue to ravage estates by charging high legal costs, judges will step in and cap costs” and “that their fees may be in doubt if they allow big bills to be run up by ‘claimants [who] are not particularly concerned about how much they get out of the estate as long as they ruin it for everybody else’.” In his warning, published in the latest Law Society Journal, Justice Young cited “a case in April where a son had claimed against his father’s $240,000 estate. The estate paid the son’s legal costs – $40,000 – as well as its own $16,000 bill. The son ended up receiving a $60,000 legacy from the estate.” Also arousing public ire of late have been a case last week in which “a woman was awarded a $60,000 legacy from her father’s $1.5 million estate, with Supreme Court Master John McLaughlin commenting that the costs were ‘excessive’: $74,500 for the woman and $130,000 for the estate”, as well as the case reported in this space Feb. 18-19, 2002, in which lawyers’ fees ate up $112,000 of a $154,000 estate, leaving only around $30,000 for the contending parties. (Leonie Lamont, “‘Sloppy’ lawyers warned their costs may be capped”, Sydney Morning Herald, Jul. 28).
Newsletter; new topic categories
Rather belatedly, we’ve sent out our periodic newsletter with highlights from the site, the first since our format change last month. If you’d like to get on the mailing list (currently 2400 strong!) to receive this, it’s easy; go to this page and sign up via the Topica service.
We’ve also used the format change as an opportunity to introduce new topic pages collecting items with a single theme. There are now separate pages on Australia and the United Kingdom to go with our previous page on Canada. And there’s a new page on sports law (Dan Lewis is doing a great job of filling it up with content) as well as crime and punishment. One regret is that we’re not equipped to go back and index items published in the pre-June 2003 format that belong in these categories.
Australia: “Doctor must pay to raise boy”
“The High Court stunned doctors yesterday with a landmark finding that a surgeon who bungled a woman’s sterilization is liable for the cost of bringing up her child to the age of 18.” Kerry Melchior’s son Jordan is perfectly healthy, but she sued Queensland ob/gyn Dr. Stephen Cattanach and the state health department because the tubal ligation he had performed had not prevented pregnancy as intended. (Cynthia Banham, Sydney Morning Herald, Jul. 17). Dr. Andrew Pesce, who chairs the Australian Medical Association’s professional indemnity task force, said “the decision was a part of a pattern where doctors’ liability was gradually increased over time, so that ‘nobody actually knows what their obligations are'”. For similar American cases, see Apr. 26-28, 2002.
Escalating liability had already provoked an insurance crisis for ob/gyns Down Under, as in the States; especially hard hit are women practitioners who often maintain less than a full-time practice but must pay hefty flat-rate premiums anyway (Wendy Tuohy, “A labour of love becomes labour too hard, and too risky”, Melbourne Age, Jul. 5). Among those quitting is Dr. Denise Koong, though some of her patients have “begged her to reconsider, saying things like: ‘Give me the paper and I’ll sign it, I will promise not to sue you!'” Trouble is, the courts (certainly in the U.S., and we presume in Australia these days as well) toss out such written promises as unenforceable.
Fast food: give me my million
From an interview aired in Australia with the plaintiff in the McDonald’s obesity lawsuit:
CAESAR BARBER: I’m saying that McDonald’s affected my health. Yes, I am saying that.
RICHARD CARLETON: So what do you want in return?
CAESAR BARBER: I want compensation for pain and suffering.
RICHARD CARLETON: But how much money do you want?
CAESAR BARBER: I don’t know ? maybe $1 million. That’s not a lot of money now.
(Richard Carleton, “Food fight”, 60 Minutes (Australia), Sept. 25, 2002). Only three years ago the possibility of suits blaming food companies for obesity furnished The Onion with material for humor (Aug. 3, 2000). “The parody has become reality.” (James Glassman, “From parody to reality”, TechCentralStation, May 21; Michael I. Krauss, “Today’s Tort Suits Are Stranger Than Fiction”, Virginia Viewpoint (Virginia Institute), May). A House panel heard testimony yesterday on a bill that would stop such lawsuits in their tracks (Maggie Fox, “Is It Your Fault I’m Fat? Congress Hears Debate”, Reuters, Jun. 19; Bruce Horovitz, “Fast-food restaurants told to warn of addiction”, USA Today, Jun. 17). A CNBC poll, with 2000 votes as of midnight Friday morning, was running 92 to 8 percent against holding fast-food restaurants responsible for expanding waistlines.
Essay on loser-pays
The following essay was written circa 1999 by our editor and formerly appeared on the site’s topical page on loser-pays.
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America differs from all other Western democracies (indeed, from virtually all nations of any sort) in its refusal to recognize the principle that the losing side in litigation should contribute toward “making whole” its prevailing opponent. It’s long past time this country joined the world in adopting that principle; unfortunately, any steps toward doing so must contend with deeply entrenched resistance from the organized bar, which likes the system the way it is.
Overlawyered.com‘s editor wrote an account in Reason, June 1995, aimed at explaining how loser-pays works in practice and dispelling some of the more common misconceptions about the device. He also testified before Congress when the issue came up that year as part of the “Contract with America”. Not online, unfortunately, are most of the relevant sections from The Litigation Explosion, which argues at length for the loser-pays idea, especially chapter 15, “Strict Liability for Lawyering”.