Cassidy, Belinda --- "Editorial" [2019] PrecedentAULA 27; (2019) 152 Precedent 2

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COMMON LAW IS NOT COMMON

By Belinda Cassidy

Last year the Honourable Susan Kiefel delivered the AIJA Oration on the topic ‘The adaptability of the common law to change’. Her paper^[1] is a tribute to the common law addressing the ability of judge-made law to respond to changes in society and to effect change in the law. She observed that while judicial responses and judicial-led change was often slow and incremental, some landmark cases have had a more dramatic effect, such as Donoghue v Stevenson,^[2] whose neighbour principle still governs the law of negligence today.

While compensation and redress systems existed before Mrs Donoghue drank the fateful ginger beer, the schemes covered in this edition highlight how far we have come since 1932 and how far we have departed from common law based damages assessments.

The National Redress Scheme for historical child sexual abuse, explained by Angela Sdrinis, David Longano and Danielle de Paoli, is landmark legislation, attempting to recognise past wrongs, amending the burden of proof and allowing aggrieved persons access to a form of justice, with a scheme designed to be simpler and less public.

One of the attractions of the common law is how it accommodates the individual. A person’s damages take into account their particular circumstances, injuries and losses. The victims’ compensation schemes identified in Anna Kerr’s article award compensation with limited regard for the individual victim and the particular crime. Anna deals with the general inadequacy of the compensation available and points out that there is a move away from compensating by lump sums towards ‘microfinance’ support and counselling packages.

Grace Bowran-Burge has provided a helpful summary of the federal Comcare regime, with its regulated benefits, limited access to common law damages and dispute resolution outside the courts (the Administrative Appeals Tribunal). Another scheme operating at the federal level is the Military Compensation Scheme and Brian Briggs provides guidance on navigating this complex minefield of three pieces of legislation and varying entitlements, restrictions and benefits and its dispute resolution forum, the Veterans Review Board.

Compensation and redress schemes have had to adapt quickly to developments in medicine. For example, the link between sunlight exposure and the incidence of skin cancer was not discovered until 1956 and according to statistics published by the Cancer Council, approximately two out of three Australians will be diagnosed with some form of skin cancer by the time they are 70. Gaius Whiffin’s article explaining the rights and entitlements of NSW workers diagnosed with occupationally acquired skin cancer is timely.

While the common law may move slowly and incrementally, parliaments have to work quickly when planning for the impact of emerging technologies. Katie Minogue and Tamara Wright’s article about autonomous vehicles and motor accident compensation schemes is a case in point. The National Transport Commission has recognised the need for reform but with eight states and territories operating eight different compensation schemes, the direction of that reform is unclear.

There is a constant complaint about complexity in these articles. Evelyn Garnett’s paper on problems she has faced dealing with those administering the NDIS is a sad tale of the battle with bureaucracy. It is hard to imagine a self-represented injured person navigating these schemes or effectively advocating for the maximum benefits available. Margarita Yerusalimsky reminds us how lucky some injured people are to have access to a compensation scheme where legal representation is permitted and reiterates the fundamental importance of preparing cases thoroughly and communicating with clients throughout.

Andrew Stone SC, the godfather of CTP^[3] (at least in NSW) has identified some early problems and pitfalls with the Motor Accident Injuries Act 2017. This new scheme of motor accident compensation introduces statutory benefits not dependent on proving fault as well as restricting access to common law claims for those who can prove fault. Legal costs are restricted and a complex three-tier system of dispute resolution has been introduced.

The topics covered here demonstrate that while the common law claim for damages is not extinct, it certainly appears to be an endangered species, threatened by the wide variety of compensation and redress schemes operating today.

Belinda Cassidy is Special Counsel with Stacks Goudkamp and is a claims assessor under the Motor Accidents Compensation Act and a claims assessor and merit reviewer under the Motor Accident Injuries Act. EMAIL [e-mail].

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^[1] <http://www.hcourt.gov.au/assets/publications/speeches/current-justices/kiefelj/KiefelCJ24May2018.pdf.pdf> .

^[2] [1932] AC 562.

^[3] Minister Victor Dominello’s first reading speech for the Motor Accident Injuries Act 2017 on 9 March 2017.