Common Law is the law of the people, by the people and for the people.
Common Law is made by the people on juries when their judgments
become precedents. Statute Law is made by the other two arms or
branches of government, ie: parliamentary and executive. In Common
Law countires, "Common Law doth control Acts of Parliament and when
adjudged against common right to be void" (Lord Coke), ie: Common Law
overrules Statute Law. Juries nullify Statute Law. Parliaments amend and
repeal Statute Law - and have no role in making Common Law. Judges have
no role in making either Common Law nor Statute Law. AND YET: Convened
in Sydney, between 7 - 11 April 2003, here we have the WORLDWIDE
COMMON LAW JUDICIARY CONFERENCE at the Law Courts Building
Queen's Square, attended by 50 Chief Justices from around the world to
promote the lie that "Judges make Common Law". Thomas Jefferson warned
that "The germ of destruction of our nation is in the power of the judiciary,
an irresponsible body - working like gravity by night and by day, gaining a
little today and a little tomorrow, and advancing its noiseless step like a thief
across the field of jurisdiction, until all shall render powerless the checks of
one branch over the other and will become as venal and oppressive as the
government from which we separated.". These judges must be stopped and
put squarely in their place as nothing more than "Officers of the Courts" to do
the bidding of juries, ie: of the people. Let judges get away with stealing
Common Law - then Freedom and the sovereignty of Democracy, ie: when
people control their own fate, will be ultterly and totally destroyed. -
John Wilson, PO Box 4520 North Rocks, NSW 2151, Australia.
www.rightsandwrong.com.au ,
Showing posts with label common law. Show all posts
Showing posts with label common law. Show all posts
Tuesday, 20 January 2009
Thursday, 13 November 2008
"Compensation for blackhole members of Victoria Police"
WCV's: CAN SOMEBODY TELL ME WHATS WRONG WITH THIS PICTURE!
WHY ARE 23 MEMBERS OF THE POLICE FORCE BEING GIVEN SPECIAL
PRIVILEGES FOR COMMON LAW RIGHTS AND 4 - 5000 OTHER
INJURED WORKERS ARE NOT!!!!!!!!
have been compensated for serious injuries sustained in the line of duty.
Consequently, members injured during this period were denied the
right to pursue compensation.
The injuries sustained by the black hole’ members are various,
encompassing the physical and psychological. Most will continue
to bear the physical and emotional scars of their injuries for a long time
to come.
23 Month period known as the ‘black hole’.
The period came about when in 1997, the Kennett Government removed the
ability of employees to sue their employers at common law for injuries arising
out of their employment.
This entitlement was reinstated by the Bracks Government in 1999, but was
not back-dated. For 23 members, this ends years of fighting for satisfactory
compensation – a process protracted by an unfair legal loop hole.
The seriously injured members who have been compensated
are part of a unique group of police who were injured between
November 1997 and October 1999
At a Police Association delegates’ conference last year, one such
member told of her experience. “I pray to God I don’t see another
colleague of mine killed in the line of duty and I have to lay there with
them and cradle his head and tell him he is going to be alright only
to find out two hours later that he has died. That is the most gutwrenching
thing I have ever come across in this job…”
For years, just compensation for the black hole members was
hamstrung by a legal quagmire, wrought by continued resistance
from the Force and the Government.
The Chief Commissioner’s public messages of fairness and support
for members rang hollow during years of unyielding negations that
continued to see our ‘black hole’ members short-changed.
While years of negotiation have finally resulted in compensation
for the majority of our ‘black hole’ members, for most, the protracted
battle for compensation only added to their pain and suffering.
In the Herald Sun last year, one injured member stated, “It just
keeps raising the question: ‘What did we do wrong and why are we
being treated this way?’ It’s having an ongoing detrimental effect on
our health and the strain on our families is incredible.”
Another stated, “The majority of the offers were grossly
inadequate…it in no way takes into consideration the six-figure
financial loss we as a family (have) accumulated as a direct result of Ms
Nixon’s own ex-gratia promises and unacceptable delays.”
Despite settlements reached on compensation for 23 of our
members, no amount of money will erase their injuries.
The lives of our ‘black hole’ members and their families will be forever
altered. Importantly, there are still six members of the black hole
group who have been denied compensation because they do not
meet the relevant criteria set out by the Force.
Another black hole for Victorians injured at work now
looms… To most, the plight of our black hole members is inconceivable.
If you are injured at work, in a physical or psychological capacity,
you expect to be fairly compensated. It is your right.
However, the rights of people who are injured at work are currently
under attack, with possible changes to legislation having the potential
to thrust all injured Victorian workers into the same black hole.
As we featured in the June edition of The Police Association Journal, and
again in this edition, through an article written by our WorkCover
lawyers, Slater & Gordon, the Victorian Government has
established a review of the Accident Compensation Act 1985, chaired by
Peter Hanks QC.
The recommendations coming out of this review threaten to further reduce
the rights of Victorians who are injured at work, with a
particular attack on those who suffer psychological/psychiatric illness.
The dangerous and confronting nature of police work that often
takes its toll on members’ physical and emotional health, means that
members are at significant risk of being disadvantaged by these
recommendations.
The issues of major concern are:
Stress
Mr Hanks has recommended that most stress claims be
taken out of the system, also recommending that psychological
and psychiatric injuries that arise from any “reasonable management
action” shouldn't count as a workplace injury.
The Victorian Trades Hall Council and the Police Association
believes that this recommendation would eliminate 90% of the 3,000
stress claims currently accepted in Victoria.
Impairment test
Further, Mr Hanks has implied that stress injuries should be
treated with a greater level of suspicion, by maintaining the
30% impairment test threshold for psychiatric injuries while keeping
the impairment threshold for most physical injuries at 10%.
Additionally, Mr. Hanks has recommended that the American
model for determining impairment be retained, meaning that if
a worker’s injuries don’t meetthe substantially more onerous
American standard, their access to a lump sum payment will be denied.
Accident Compensation Conciliation Service (ACCS)
The ACCS is the body that resolves workers compensation disputes.
Mr Hanks has recommended that its powers be reduced.
The Victorian Trades Hall Council, with the support of the Police
Association says that a reduction in the powers of the ACCS in resolving
compensation disputes will see an extra 6,000 claims clogging up the
court system – costing an extra $60 million a year and delaying the
treatment of injuries.
During the review process, a number of bodies prepared
submissions to Mr. Hanks QC. Members should be aware that
the two submissions filed by the Victoria Police Force support further
restrictions to members’ right to pursue compensation, including
broadening exclusions in the Act which would result in many more
claims for stress related illness being rejected.
The Victorian Trades Hall Council with the support of The Police
Association and other key unions are running a campaign to ensure
that the rights of injured workers are upheld.
To learn more about the campaign, visit the website -
www.fixworkcover.org
To read more about the review of the Accident Compensation Act
1985 and view submissions, visit www.compensationreview.vic.
gov.au.
The Chief Commissioner’s public messages of fairness and support for
members rang hollow during years of unyielding negations …
Reference: The Police Association Journal - September 2008
WHY ARE 23 MEMBERS OF THE POLICE FORCE BEING GIVEN SPECIAL
PRIVILEGES FOR COMMON LAW RIGHTS AND 4 - 5000 OTHER
INJURED WORKERS ARE NOT!!!!!!!!
The Police Journal - September 2008
Compensation at last For ‘black hole’ members
After an arduous 10-year struggle, the majority of our ‘black hole’ membershave been compensated for serious injuries sustained in the line of duty.
Consequently, members injured during this period were denied the
right to pursue compensation.
The injuries sustained by the black hole’ members are various,
encompassing the physical and psychological. Most will continue
to bear the physical and emotional scars of their injuries for a long time
to come.
23 Month period known as the ‘black hole’.
The period came about when in 1997, the Kennett Government removed the
ability of employees to sue their employers at common law for injuries arising
out of their employment.
This entitlement was reinstated by the Bracks Government in 1999, but was
not back-dated. For 23 members, this ends years of fighting for satisfactory
compensation – a process protracted by an unfair legal loop hole.
The seriously injured members who have been compensated
are part of a unique group of police who were injured between
November 1997 and October 1999
At a Police Association delegates’ conference last year, one such
member told of her experience. “I pray to God I don’t see another
colleague of mine killed in the line of duty and I have to lay there with
them and cradle his head and tell him he is going to be alright only
to find out two hours later that he has died. That is the most gutwrenching
thing I have ever come across in this job…”
For years, just compensation for the black hole members was
hamstrung by a legal quagmire, wrought by continued resistance
from the Force and the Government.
The Chief Commissioner’s public messages of fairness and support
for members rang hollow during years of unyielding negations that
continued to see our ‘black hole’ members short-changed.
While years of negotiation have finally resulted in compensation
for the majority of our ‘black hole’ members, for most, the protracted
battle for compensation only added to their pain and suffering.
In the Herald Sun last year, one injured member stated, “It just
keeps raising the question: ‘What did we do wrong and why are we
being treated this way?’ It’s having an ongoing detrimental effect on
our health and the strain on our families is incredible.”
Another stated, “The majority of the offers were grossly
inadequate…it in no way takes into consideration the six-figure
financial loss we as a family (have) accumulated as a direct result of Ms
Nixon’s own ex-gratia promises and unacceptable delays.”
Despite settlements reached on compensation for 23 of our
members, no amount of money will erase their injuries.
The lives of our ‘black hole’ members and their families will be forever
altered. Importantly, there are still six members of the black hole
group who have been denied compensation because they do not
meet the relevant criteria set out by the Force.
Another black hole for Victorians injured at work now
looms… To most, the plight of our black hole members is inconceivable.
If you are injured at work, in a physical or psychological capacity,
you expect to be fairly compensated. It is your right.
However, the rights of people who are injured at work are currently
under attack, with possible changes to legislation having the potential
to thrust all injured Victorian workers into the same black hole.
As we featured in the June edition of The Police Association Journal, and
again in this edition, through an article written by our WorkCover
lawyers, Slater & Gordon, the Victorian Government has
established a review of the Accident Compensation Act 1985, chaired by
Peter Hanks QC.
The recommendations coming out of this review threaten to further reduce
the rights of Victorians who are injured at work, with a
particular attack on those who suffer psychological/psychiatric illness.
The dangerous and confronting nature of police work that often
takes its toll on members’ physical and emotional health, means that
members are at significant risk of being disadvantaged by these
recommendations.
The issues of major concern are:
Stress
Mr Hanks has recommended that most stress claims be
taken out of the system, also recommending that psychological
and psychiatric injuries that arise from any “reasonable management
action” shouldn't count as a workplace injury.
The Victorian Trades Hall Council and the Police Association
believes that this recommendation would eliminate 90% of the 3,000
stress claims currently accepted in Victoria.
Impairment test
Further, Mr Hanks has implied that stress injuries should be
treated with a greater level of suspicion, by maintaining the
30% impairment test threshold for psychiatric injuries while keeping
the impairment threshold for most physical injuries at 10%.
Additionally, Mr. Hanks has recommended that the American
model for determining impairment be retained, meaning that if
a worker’s injuries don’t meetthe substantially more onerous
American standard, their access to a lump sum payment will be denied.
Accident Compensation Conciliation Service (ACCS)
The ACCS is the body that resolves workers compensation disputes.
Mr Hanks has recommended that its powers be reduced.
The Victorian Trades Hall Council, with the support of the Police
Association says that a reduction in the powers of the ACCS in resolving
compensation disputes will see an extra 6,000 claims clogging up the
court system – costing an extra $60 million a year and delaying the
treatment of injuries.
During the review process, a number of bodies prepared
submissions to Mr. Hanks QC. Members should be aware that
the two submissions filed by the Victoria Police Force support further
restrictions to members’ right to pursue compensation, including
broadening exclusions in the Act which would result in many more
claims for stress related illness being rejected.
The Victorian Trades Hall Council with the support of The Police
Association and other key unions are running a campaign to ensure
that the rights of injured workers are upheld.
To learn more about the campaign, visit the website -
www.fixworkcover.org
To read more about the review of the Accident Compensation Act
1985 and view submissions, visit www.compensationreview.vic.
gov.au.
The Chief Commissioner’s public messages of fairness and support for
members rang hollow during years of unyielding negations …
Reference: The Police Association Journal - September 2008
Monday, 10 November 2008
Labor and WorkCover: A Case of Hypocrisy
An article published in The Age newspaper, 24 March 2000.
A quick quiz on WorkCover:
Who said: "It is clear to this government that the common-law negligence
action which bases its entitlement on proof of fault is a costly, inefficient
and inappropriate mechanism for compensating injured workers."?
Who was the first Victorian Government Minister to vote to end all common
law legal actions for workers compensation?
Which was the first Australian State to end all common law legal actions
for workers compensation, and when?
If your answers were Jeff Kennett, a Kennett Government Minister, and
Victoria in 1997, score yourself zero.
The correct answers are:
Federal Labor Minister Brian Howe, advocating the total elimination of
common law from Commonwealth workers compensation. (Hansard 27
April 1988, p.2194)
Mr John Brumby, voting as a Commonwealth MP for Brian Howe's
legislation. (Hansard, 20 May, 1988, p.2755)
South Australia in 1992, under a Labor Government.
Over recent years, Labor in Victoria have worked hard to have us believe that
so-called common law legal actions for workers compensation are a time-
hallowed civil right removed only by the tyrannical act of a repressive
Coalition government.
But in fact the impetus to remove common law from workers' compensation
has traditionally come from the Labor side of politics.
In Victoria, it was the Cain Labor government that looked to replace the old
common law based workers compensation scheme with a statutory no-fault
scheme.
The Cain government totally removed common law actions for economic loss
in 1985, leaving common law only for non-economic loss (pain and suffering).
It was the newly elected Coalition government that in 1992 restored common
law legal actions by seriously injured workers for economic loss.
One might therefore have thought that when in 1997 the Coalition concluded
that common law legal actions were not the best way to provide compensation,
Victorian Labor would have claimed a moral victory.
But instead they quickly launched an opportunistic campaign to attack what
many in the Labor movement had advocated for years.
Ironically, it was to overcome deficiencies of the common law that the Labor
movement first called for statutory workers compensation in the late 19th
century.
Under pure "common law", a worker could not recover for injuries due to
the negligent action of a fellow worker, or to which his or her own negligence
contributed in the slightest degree.
Furthermore, if the injured worker died, the right to sue for negligence
ended, and his or her dependents could not recover.
Legislative amendments were necessary to overturn each of these elements
of the common law.
Thus the so-called common law workers compensation action of today is in
fact a recently created hybrid of common law and statute, which cannot
demand allegiance based on antiquity but must stand or fall on its merits.
Another myth in the current debate is that common law is needed because
Victoria has low benefit levels for seriously injured workers.
Prior to 1997, the average payment received by a Victorian worker as a
result of a common law action was $171,000, which took the place of both
weekly benefits and a statutory lump sum.
Under the 1997 statutory benefits, a worker unable to work again will receive
weekly benefits of 75% of pre-injury ordinary time earnings, to a maximum of
$887 per week, until retirement age.
For a 30 year old worker receiving weekly payments of $650, this would
total $1,186,185 over 35 years, equal to around $490,000 in present value.
As well, a lump sum benefit is payable, to a maximum of $302,250 for very
serious injuries such as paraplegia or blindness.
By comparison, weekly payments, plus any statutory lump sum payment,
cannot normally exceed $119,048 in total in Western Australia, or $235,640
in Queensland.
In NSW, an injured worker who is married with one child will receive a
maximum of $395.80 a week. The maximum NSW statutory lump sum is
$171,000.
To receive more than these amounts, an injured worker in Western Australia,
Queensland or NSW would need successfully to run the gauntlet of a common
law legal action.
In South Australia, which does not have common law, long term weekly benefits
are 80% of the worker's average weekly earnings, but the maximum lump sum
payment is only $175,875.
In their current campaign, not only do Victorian unions want to bring back
common law legal actions with retrospective effect, they also want to keep all
of the increased statutory benefits which were provided in 1997 to replace
common law, and on top of that they are pushing for further increases in
statutory benefits.
These demands will increase WorkCover premiums by over 20% - or more
if claims blow out beyond estimates. Even the Government's proposed upper
limit will increase premiums by 15%.
The Government argues that premium increases are OK so long as Victorian
premiums remain "competitive", by which they mean at or below the national
average. But to be "competitive" one has to do better than one's competitors.
Queensland's premiums will be an average of 1.85% of payroll from 1 July,
lower even that Victoria's current level of 1.9%.
Queensland have already shown with instances such as Virgin Airlines that t
hey are highly competitive in winning business away from Victoria.
If the Government does not resist the unions' campaign, it will end up
costing Victoria confidence, investment and jobs.
Robert Clark MP
Shadow Minister for WorkCover
robert.clark@parliament.vic.gov.au
A quick quiz on WorkCover:
Who said: "It is clear to this government that the common-law negligence
action which bases its entitlement on proof of fault is a costly, inefficient
and inappropriate mechanism for compensating injured workers."?
Who was the first Victorian Government Minister to vote to end all common
law legal actions for workers compensation?
Which was the first Australian State to end all common law legal actions
for workers compensation, and when?
If your answers were Jeff Kennett, a Kennett Government Minister, and
Victoria in 1997, score yourself zero.
The correct answers are:
Federal Labor Minister Brian Howe, advocating the total elimination of
common law from Commonwealth workers compensation. (Hansard 27
April 1988, p.2194)
Mr John Brumby, voting as a Commonwealth MP for Brian Howe's
legislation. (Hansard, 20 May, 1988, p.2755)
South Australia in 1992, under a Labor Government.
Over recent years, Labor in Victoria have worked hard to have us believe that
so-called common law legal actions for workers compensation are a time-
hallowed civil right removed only by the tyrannical act of a repressive
Coalition government.
But in fact the impetus to remove common law from workers' compensation
has traditionally come from the Labor side of politics.
In Victoria, it was the Cain Labor government that looked to replace the old
common law based workers compensation scheme with a statutory no-fault
scheme.
The Cain government totally removed common law actions for economic loss
in 1985, leaving common law only for non-economic loss (pain and suffering).
It was the newly elected Coalition government that in 1992 restored common
law legal actions by seriously injured workers for economic loss.
One might therefore have thought that when in 1997 the Coalition concluded
that common law legal actions were not the best way to provide compensation,
Victorian Labor would have claimed a moral victory.
But instead they quickly launched an opportunistic campaign to attack what
many in the Labor movement had advocated for years.
Ironically, it was to overcome deficiencies of the common law that the Labor
movement first called for statutory workers compensation in the late 19th
century.
Under pure "common law", a worker could not recover for injuries due to
the negligent action of a fellow worker, or to which his or her own negligence
contributed in the slightest degree.
Furthermore, if the injured worker died, the right to sue for negligence
ended, and his or her dependents could not recover.
Legislative amendments were necessary to overturn each of these elements
of the common law.
Thus the so-called common law workers compensation action of today is in
fact a recently created hybrid of common law and statute, which cannot
demand allegiance based on antiquity but must stand or fall on its merits.
Another myth in the current debate is that common law is needed because
Victoria has low benefit levels for seriously injured workers.
Prior to 1997, the average payment received by a Victorian worker as a
result of a common law action was $171,000, which took the place of both
weekly benefits and a statutory lump sum.
Under the 1997 statutory benefits, a worker unable to work again will receive
weekly benefits of 75% of pre-injury ordinary time earnings, to a maximum of
$887 per week, until retirement age.
For a 30 year old worker receiving weekly payments of $650, this would
total $1,186,185 over 35 years, equal to around $490,000 in present value.
As well, a lump sum benefit is payable, to a maximum of $302,250 for very
serious injuries such as paraplegia or blindness.
By comparison, weekly payments, plus any statutory lump sum payment,
cannot normally exceed $119,048 in total in Western Australia, or $235,640
in Queensland.
In NSW, an injured worker who is married with one child will receive a
maximum of $395.80 a week. The maximum NSW statutory lump sum is
$171,000.
To receive more than these amounts, an injured worker in Western Australia,
Queensland or NSW would need successfully to run the gauntlet of a common
law legal action.
In South Australia, which does not have common law, long term weekly benefits
are 80% of the worker's average weekly earnings, but the maximum lump sum
payment is only $175,875.
In their current campaign, not only do Victorian unions want to bring back
common law legal actions with retrospective effect, they also want to keep all
of the increased statutory benefits which were provided in 1997 to replace
common law, and on top of that they are pushing for further increases in
statutory benefits.
These demands will increase WorkCover premiums by over 20% - or more
if claims blow out beyond estimates. Even the Government's proposed upper
limit will increase premiums by 15%.
The Government argues that premium increases are OK so long as Victorian
premiums remain "competitive", by which they mean at or below the national
average. But to be "competitive" one has to do better than one's competitors.
Queensland's premiums will be an average of 1.85% of payroll from 1 July,
lower even that Victoria's current level of 1.9%.
Queensland have already shown with instances such as Virgin Airlines that t
hey are highly competitive in winning business away from Victoria.
If the Government does not resist the unions' campaign, it will end up
costing Victoria confidence, investment and jobs.
Robert Clark MP
Shadow Minister for WorkCover
robert.clark@parliament.vic.gov.au
Saturday, 25 October 2008
Media Release - From the Minister for Workcover - Tuesday, April 11, 2000
GOING FORWARD: GOVERNMENT DELIVERS ON COMMON LAW RIGHTS FOR SERIOUSLY INJURED WORKERS
The Victorian Government has delivered on its commitment to restore
common law rights for seriously injured workers the Premier, Mr Steve
Bracks, said today.
Mr Bracks said the changes would be effective as at October 20 1999 –
the day the government was sworn into office.“The Labor Government
was elected with a very clear commitment to restore common law rights
for seriously injured workers,” Mr Bracks said.“We said we wanted a
WorkCover scheme which was fully funded, that had competitive
premiums and which restored the common law rights of seriously
injured workers.“Today we’ve delivered on that commitment.
”Mr Bracks said workers would be able to access damages for common
law if they satisfied strict guidelines for serious injury under either a
whole person impairment test or through a tightened narrative which
would be assessed through the courts.“As was the case prior to November
11 1997 a worker must have either a whole person impairment of 30%, as
assessed under the AMA Medical Guides 4th Edition, or satisfy the narrative
test for serious injury,”Mr Bracks said.
“The narrative test examines the consequences of the injury on an individual
in terms of both economic loss and pain and suffering.”WorkCover premiums
will increase marginally to an average of 2.18% of payroll – still below the
national average. This will overcome WorkCover’s unfunded liability,
which has been estimated at $296 million, and ensure the scheme is fully
funded within three years.
Mr Bracks said workers who were seriously injured between November
1997 and October 1999 would be offered assistance through a new
Intensive Case Review Program (ICRP).
“The ICRP will offer support to the victims who were hardest hit by
the Kennett Government’s changes. The program will ensure that
seriously injured workers are getting the maximum financial help
they can including the chance, where appropriate, to access a lump
sum settlement of their benefit,” Mr Bracks said.
Mr Bracks said other changes to the WorkCover Scheme would
include:·
The Minister for WorkCover, Mr Bob Cameron, said the changes
were responsible and affordable.“These changes show that this
government cares for those workers who are severely injured in
the workplace.”“Now, under Labor, Victorians who are seriously
injured at work because of employer or third party negligence
will have the right to take action through the courts.
WCV's: but only if you weren't injured during 97 - 99, Mr Bracks!
We haven't seen any of the improvements that you offered. (ICRP process)
The use of the phrase "seriously injured" leaves a lot of injured
workers without cover. (more than a 30% whole person impairment
needed)
So whom really benefited form this announcement and its apparent
changes?
Injured workers are still be refused medical and alike expenses,
physiotherapy,specialist care, return to works, and common law rights
because of ridiculous and impractical guidelines that were designed to
make it virtually impossible for a worker to really make a claim.
All of the promises made by Bracks during his pre election campaign
about helping the Injured workers of Victoria was all lies and and
obvious ploy for the Labor government to big note themselves and
make it look like they give a shit, and we all know they don't!!!!
So wheres the going forward Mr Bracks?
Injured Workers are tired of this behaviour by our Governments!
The Victorian Government has delivered on its commitment to restore
common law rights for seriously injured workers the Premier, Mr Steve
Bracks, said today.
Mr Bracks said the changes would be effective as at October 20 1999 –
the day the government was sworn into office.“The Labor Government
was elected with a very clear commitment to restore common law rights
for seriously injured workers,” Mr Bracks said.“We said we wanted a
WorkCover scheme which was fully funded, that had competitive
premiums and which restored the common law rights of seriously
injured workers.“Today we’ve delivered on that commitment.
”Mr Bracks said workers would be able to access damages for common
law if they satisfied strict guidelines for serious injury under either a
whole person impairment test or through a tightened narrative which
would be assessed through the courts.“As was the case prior to November
11 1997 a worker must have either a whole person impairment of 30%, as
assessed under the AMA Medical Guides 4th Edition, or satisfy the narrative
test for serious injury,”Mr Bracks said.
“The narrative test examines the consequences of the injury on an individual
in terms of both economic loss and pain and suffering.”WorkCover premiums
will increase marginally to an average of 2.18% of payroll – still below the
national average. This will overcome WorkCover’s unfunded liability,
which has been estimated at $296 million, and ensure the scheme is fully
funded within three years.
Mr Bracks said workers who were seriously injured between November
1997 and October 1999 would be offered assistance through a new
Intensive Case Review Program (ICRP).
“The ICRP will offer support to the victims who were hardest hit by
the Kennett Government’s changes. The program will ensure that
seriously injured workers are getting the maximum financial help
they can including the chance, where appropriate, to access a lump
sum settlement of their benefit,” Mr Bracks said.
Mr Bracks said other changes to the WorkCover Scheme would
include:·
- Improved weekly benefits for both employees and employers
- Improvements to pain and suffering (SNEL) benefits·
- Restrictions on legal costs·
- A review of rehabilitation and return to work programs.
The Minister for WorkCover, Mr Bob Cameron, said the changes
were responsible and affordable.“These changes show that this
government cares for those workers who are severely injured in
the workplace.”“Now, under Labor, Victorians who are seriously
injured at work because of employer or third party negligence
will have the right to take action through the courts.
WCV's: but only if you weren't injured during 97 - 99, Mr Bracks!
We haven't seen any of the improvements that you offered. (ICRP process)
The use of the phrase "seriously injured" leaves a lot of injured
workers without cover. (more than a 30% whole person impairment
needed)
So whom really benefited form this announcement and its apparent
changes?
Injured workers are still be refused medical and alike expenses,
physiotherapy,specialist care, return to works, and common law rights
because of ridiculous and impractical guidelines that were designed to
make it virtually impossible for a worker to really make a claim.
All of the promises made by Bracks during his pre election campaign
about helping the Injured workers of Victoria was all lies and and
obvious ploy for the Labor government to big note themselves and
make it look like they give a shit, and we all know they don't!!!!
So wheres the going forward Mr Bracks?
Injured Workers are tired of this behaviour by our Governments!
Tuesday, 30 September 2008
Injured Workers have rights too we need to look deeper into this legislation.
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The site is maintained by a loose association of Sovereign men and women
united in a common cause with the aid of the seven natural laws they were born with
to live, uphold and protect the rights provided by this country's founders, to
ensure that their fellow Sovereign men, women and children will retain those
rights and to become educated themselves about those rights.
"Quote". A Sovereign man/woman asks questions and gives direction.
A Slave answers questions and takes direction.
What you will find here
There are many who perceive that something is not right, but are unable
to source the correct information, or don't know how to initiate a response.
This site seeks to rectify that problem and to become a repository of
information for the benefit of all Australians.
You will find here material to assist you to educate yourself on your
responsibilities and equip yourself to uphold your rights and freedoms.
Please feel free to browse and use the material on this web site.
Finally, we thank you for your patience, parts of this site are still under
construction.
Quote:"To teach a man how he may learn to grow independently, and for himself,
is perhaps the greatest service that one man can do another".
Benjamin Jowett
Retrieved from "http://www.saveaus.info/index.php?title=Home"
Welcome to the Save Australia website
THINGS YOU NEED TO KNOW
How to Express Your Will
Know and understand what your true Constitutional powers are, and how you can
lawfully use those powers to obtain the results you want your elected
parliamentarians to produce.
This site is dedicated to those Australians who wish to conserve the freedoms
provided to us by our founders and the authors of the Australian Constitution.
As individuals we are created by God and are under God, not under the government,
which is the creation of people. Government has limits on it, and those limits
are placed on it by the people (who have the ultimate authority over government)
and not the other way around. In Australia, it is the Constitution that sets out
the limits on government that the people consider appropriate.
Australia to a large extent has lost the purity and clarity of the freedoms
originally provided by the framers of our Constitution, and indeed
our pond has become very muddy.
The site is maintained by a loose association of Sovereign men and women
united in a common cause with the aid of the seven natural laws they were born with
to live, uphold and protect the rights provided by this country's founders, to
ensure that their fellow Sovereign men, women and children will retain those
rights and to become educated themselves about those rights.
"Quote". A Sovereign man/woman asks questions and gives direction.
A Slave answers questions and takes direction.
What you will find here
There are many who perceive that something is not right, but are unable
to source the correct information, or don't know how to initiate a response.
This site seeks to rectify that problem and to become a repository of
information for the benefit of all Australians.
You will find here material to assist you to educate yourself on your
responsibilities and equip yourself to uphold your rights and freedoms.
Please feel free to browse and use the material on this web site.
Finally, we thank you for your patience, parts of this site are still under
construction.
Quote:"To teach a man how he may learn to grow independently, and for himself,
is perhaps the greatest service that one man can do another".
Benjamin Jowett
Retrieved from "http://www.saveaus.info/index.php?title=Home"
Saturday, 20 September 2008
Kennett lied about the statistics to change common law rights
Fact: The Kennett government lied about worksafe statistics and costs to the
public to enable the changes to our common law rights simply, to save money by
preventing the employers levy from increasing which was a pre election promise
made by the Bracks government and nothings been done about it?
Why Not!
Can our politicians just lie to the public and not be held accountable for them?
When does this sort of behaviour become a criminal offence?
The Kennett government changed our laws and our rights by lying and I for
one believe he should be accountable in our law courts.
His lies have effected all the injured workers of Victoria!
I bet if it was an injured worker lying to worksafe or the Government then they
would be cut off and thrown into court! Why isnt Kennett and Hallam being given
the same treatment as an injured worker would be, what makes them so special?
Kennett and Hallams lies have left injured workers untreated and for many they
end up with depression and many attempt suicide.
So I am asking the Government what part of this is fair, reasonable and Justified?
Is the Government going to be reasponsible for the deaths of these injured workers
because worksafe are causing this to happen!
public to enable the changes to our common law rights simply, to save money by
preventing the employers levy from increasing which was a pre election promise
made by the Bracks government and nothings been done about it?
Why Not!
Can our politicians just lie to the public and not be held accountable for them?
When does this sort of behaviour become a criminal offence?
The Kennett government changed our laws and our rights by lying and I for
one believe he should be accountable in our law courts.
His lies have effected all the injured workers of Victoria!
I bet if it was an injured worker lying to worksafe or the Government then they
would be cut off and thrown into court! Why isnt Kennett and Hallam being given
the same treatment as an injured worker would be, what makes them so special?
Kennett and Hallams lies have left injured workers untreated and for many they
end up with depression and many attempt suicide.
So I am asking the Government what part of this is fair, reasonable and Justified?
Is the Government going to be reasponsible for the deaths of these injured workers
because worksafe are causing this to happen!
Solicitors Required
We are searching for solicitors who are interested in representing
"WorkcoverVictims" clients and have a genuine interest in legislations changes.
Please email mailto:workcovervictims@westnet.com.au for more information.
"WorkcoverVictims" clients and have a genuine interest in legislations changes.
Please email mailto:workcovervictims@westnet.com.au for more information.
The right to trial by Jury
Schemes such as WorkCover administered by Statutory Bodies cannot deny
anyone access to Trial by Jury. The Right to Trial by Jury is INALIENABLE,
ie: it cannot be taken away and it cannot be given away.
anyone access to Trial by Jury. The Right to Trial by Jury is INALIENABLE,
ie: it cannot be taken away and it cannot be given away.
WCV's: Questions, if its legal then for injured workers to be forced into the
medical panels? If your right to trial cannot be given away or taken away then
why are injured workers being forced to attend these Medical Panel's?
These panels are still funded by Worksafe and are not impartial as we are led
to believe?
Wednesday, 17 September 2008
Govt considers compo law rejig
Marc Moncrief July 18, 2008 - 9:15AM
Victoria is considering whether to scrap its workplace compensation laws
and implement a scheme that could cost nearly $150 million more.
A leaked draft of a Government review of the laws governing WorkCover
makes 133 recommendations that would comprehensively reshape
Victoria's scheme.
The author of the report, Peter Hanks, QC, says the current system is
"overly complex" and that the Accident Compensation Act and the Accident
Compensation (WorkCover Insurance) Act should be "recast" into one
comprehensive act. Mr Hanks recommends the new scheme be named
"WorkSafe Victoria".
The report is the result of a review commissioned in December by WorkCover
Minister Tim Holding.
It is believed to be now before a Stakeholder Reference Group made up of
representatives of unions, employer groups, legal associations and the Australian
Medical Association. A final version of the report is expected to be made public
later this year.
Mr Hanks says in the report that some of the provisions in the current laws
are "spent or obsolete" and cites "anomalies and inconsistencies" that he
says frustrate the laws' application.
"It is fair to say that the legislation itself is a complex piece of legislation
that has been amended numerous times over the years," said Craig Sidebottom,
a senior associate at plaintiff law firm Slater & Gordon. "We would hope that
the review would lead to some simplification and streamlining of the act."
Workcover's profits reached nearly $1.2 billion last year.
Much of that money came from returns on WorkCover investments that
may be used to subsidise the reforms.
But Opposition Leader Ted Baillieu said most of the cost increases would
probably fall to employers, who would be hit with higher premiums.
Among other things, the recommendations include:
Higher maximum payments for those who have suffered injuries at work and
amendments to ensure workers with long-term disabilities are paid superannuation.
An increase to the maximum payment for a work-related death from $257,210
to $468,720.
An increase to the minimum benefit for psychological impairment due to injury,
but no change to the threshold that triggers the payment, which will remain at a
30% loss of function.
An expanded bureaucracy including a WorkSafe Review Panel to be a final
arbiter of disputes.
Some recommendations, such as the operation of the review panel, are uncosted,
but a preliminary cost estimate of selected recommendations is between $85
million and $146 million. About $3 million of savings are identified.
The Victorian Government under Premier John Brumby and his predecessor,
Steve Bracks, has cut WorkCover premiums for five consecutive years.
In the most recent state budget, handed down in May, the Government offered
a 5% reduction in premiums, which it estimated would save businesses $88
million this year.
A Government spokesman, Matt Nurse, said Victorian employers would have
saved more than $2 billion by the end of this year thanks to the cuts to
WorkCover premiums.
WCV's: Why is the government offering a 5% reductions to employers when
they are telling injured workers of the Kennett Era that the government cannot
afford to include us in the new common law changes?
If the government can afford to give the employers a 5% discount then they can
afford to include all injured workers in the changes
If the government can afford to waste $150 million on making these new
changes then they can afford to pay all injured workers denied their
claims during the blackhole period!
Victoria is considering whether to scrap its workplace compensation laws
and implement a scheme that could cost nearly $150 million more.
A leaked draft of a Government review of the laws governing WorkCover
makes 133 recommendations that would comprehensively reshape
Victoria's scheme.
The author of the report, Peter Hanks, QC, says the current system is
"overly complex" and that the Accident Compensation Act and the Accident
Compensation (WorkCover Insurance) Act should be "recast" into one
comprehensive act. Mr Hanks recommends the new scheme be named
"WorkSafe Victoria".
The report is the result of a review commissioned in December by WorkCover
Minister Tim Holding.
It is believed to be now before a Stakeholder Reference Group made up of
representatives of unions, employer groups, legal associations and the Australian
Medical Association. A final version of the report is expected to be made public
later this year.
Mr Hanks says in the report that some of the provisions in the current laws
are "spent or obsolete" and cites "anomalies and inconsistencies" that he
says frustrate the laws' application.
"It is fair to say that the legislation itself is a complex piece of legislation
that has been amended numerous times over the years," said Craig Sidebottom,
a senior associate at plaintiff law firm Slater & Gordon. "We would hope that
the review would lead to some simplification and streamlining of the act."
Workcover's profits reached nearly $1.2 billion last year.
Much of that money came from returns on WorkCover investments that
may be used to subsidise the reforms.
But Opposition Leader Ted Baillieu said most of the cost increases would
probably fall to employers, who would be hit with higher premiums.
Among other things, the recommendations include:
Higher maximum payments for those who have suffered injuries at work and
amendments to ensure workers with long-term disabilities are paid superannuation.
An increase to the maximum payment for a work-related death from $257,210
to $468,720.
An increase to the minimum benefit for psychological impairment due to injury,
but no change to the threshold that triggers the payment, which will remain at a
30% loss of function.
An expanded bureaucracy including a WorkSafe Review Panel to be a final
arbiter of disputes.
Some recommendations, such as the operation of the review panel, are uncosted,
but a preliminary cost estimate of selected recommendations is between $85
million and $146 million. About $3 million of savings are identified.
The Victorian Government under Premier John Brumby and his predecessor,
Steve Bracks, has cut WorkCover premiums for five consecutive years.
In the most recent state budget, handed down in May, the Government offered
a 5% reduction in premiums, which it estimated would save businesses $88
million this year.
A Government spokesman, Matt Nurse, said Victorian employers would have
saved more than $2 billion by the end of this year thanks to the cuts to
WorkCover premiums.
WCV's: Why is the government offering a 5% reductions to employers when
they are telling injured workers of the Kennett Era that the government cannot
afford to include us in the new common law changes?
If the government can afford to give the employers a 5% discount then they can
afford to include all injured workers in the changes
If the government can afford to waste $150 million on making these new
changes then they can afford to pay all injured workers denied their
claims during the blackhole period!
Wednesday, 23 July 2008
WorkCover barrister bill $38m
This is not Justice served.
WCV believes that this practice is an injustice being forced on us by a cashed up
VWA. This is a clear injustice being committed on those less likely to be able
to defend themselves on the same playing field! The VWA are fully aware that
WCV's are not in the position to be employing silks to defend them?
This is not natural justice being seen to be served.
The Victorian WorkCover Authority has been accused of mis-spending millions
of dollars to employ senior barristers to act against injured workers in court
cases.
Unionists and plaintiff lawyers have expressed outrage over internal
WorkCover figures revealing spending of nearly $38 million on barristers,
including almost $18 million on QCs and SCs, in the three years to May.
WorkCover denies any mis-spending, saying its $6 billion scheme is being
run cost-effectively and it must defend against fraudulent claims.
Victorian Trades Hall assistant secretary Nathan Niven said yesterday
that he was shocked by the spending on counsel and mystified by the
proportion that had gone to QCs.
"We are not talking High Court international law stuff here.
"For them (the authority) to be using QCs is absolutely excessive.
It is over the top," he said.
Mr Niven said unions had often expressed concern to the Government in the
past over the authority's spending on legal counsel but "the rich are getting
richer and the injured are not being cared for".
The Victorian president of the Australian Plaintiff Lawyers Association,
Simon Garnett, said the spending on senior counsel was indiscriminate.
"There is an excessive overuse of counsel," he said. "There is a lot of money
being spent on barristers' fees which I think shouldn't be spent."
But the authority has strongly defended its legal spending.
A spokeswoman for the authority said barristers had acted for the authority
in 11,000 court cases in the past three years with senior counsel acting in about
a fifth of those cases.She said the authority sought to resolve matters in
conciliation wherever possible but often used legal counsel where an employee's
credibility was at issue.
Over the past year, the authority had delivered $130 million in extra
impairment benefits to workers and a 10 per cent cut in employers'
premium, she said.She added that the figures detailing $37.6 million in
authority spending on legal counsel from May 2001 to April 30, 2004
were only "preliminary" and had to be viewed in the context of WorkCover
being a multibillion-dollar scheme.
But personal injury specialist Harry Nowicki accused the authority of briefing
senior counsel in relatively simple cases, saying it appeared that the authority
did so to intimidate injured workers."We think it was a policy (introduced)
to intimidate plaintiffs and their representatives," said Mr Nowicki, a senior
partner with Nowicki Carbone & Co.
"Silks should only be for the most difficult and complicated cases," he said
By Fergus Shiel Law Reporter, July 28, 2004
WCV believes that this practice is an injustice being forced on us by a cashed up
VWA. This is a clear injustice being committed on those less likely to be able
to defend themselves on the same playing field! The VWA are fully aware that
WCV's are not in the position to be employing silks to defend them?
This is not natural justice being seen to be served.
The Victorian WorkCover Authority has been accused of mis-spending millions
of dollars to employ senior barristers to act against injured workers in court
cases.
Unionists and plaintiff lawyers have expressed outrage over internal
WorkCover figures revealing spending of nearly $38 million on barristers,
including almost $18 million on QCs and SCs, in the three years to May.
WorkCover denies any mis-spending, saying its $6 billion scheme is being
run cost-effectively and it must defend against fraudulent claims.
Victorian Trades Hall assistant secretary Nathan Niven said yesterday
that he was shocked by the spending on counsel and mystified by the
proportion that had gone to QCs.
"We are not talking High Court international law stuff here.
"For them (the authority) to be using QCs is absolutely excessive.
It is over the top," he said.
Mr Niven said unions had often expressed concern to the Government in the
past over the authority's spending on legal counsel but "the rich are getting
richer and the injured are not being cared for".
The Victorian president of the Australian Plaintiff Lawyers Association,
Simon Garnett, said the spending on senior counsel was indiscriminate.
"There is an excessive overuse of counsel," he said. "There is a lot of money
being spent on barristers' fees which I think shouldn't be spent."
But the authority has strongly defended its legal spending.
A spokeswoman for the authority said barristers had acted for the authority
in 11,000 court cases in the past three years with senior counsel acting in about
a fifth of those cases.She said the authority sought to resolve matters in
conciliation wherever possible but often used legal counsel where an employee's
credibility was at issue.
Over the past year, the authority had delivered $130 million in extra
impairment benefits to workers and a 10 per cent cut in employers'
premium, she said.She added that the figures detailing $37.6 million in
authority spending on legal counsel from May 2001 to April 30, 2004
were only "preliminary" and had to be viewed in the context of WorkCover
being a multibillion-dollar scheme.
But personal injury specialist Harry Nowicki accused the authority of briefing
senior counsel in relatively simple cases, saying it appeared that the authority
did so to intimidate injured workers."We think it was a policy (introduced)
to intimidate plaintiffs and their representatives," said Mr Nowicki, a senior
partner with Nowicki Carbone & Co.
"Silks should only be for the most difficult and complicated cases," he said
By Fergus Shiel Law Reporter, July 28, 2004
Tuesday, 22 July 2008
WorkCover must direct its budget surplus to injured workers
If the following article was published in 2006 and the Government are
aware of this possibility and have a large surplus then why havent they trialed
it?
This size surplus for instance, could help those injured workers hurt during
Kennetts Law in Victoria to be able to access some form of compensation?
but it seems that injured workers are the last things on the minds of Government
and worksafe in all states.
Greens MP and industrial relations spokesperson, Lee Rhiannon today
challenged the Industrial Relations Minister, John Della Bosca in parliamentary
question time to direct part of a $2 billion WorkCover budget windfall towards
injured workers.
“The Greens have challenged the government to direct an $85 million budget
surplus from its $2 billion WorkCover windfall towards fairer compensation for
injured workers,” said Ms Rhiannon.
“The $2 billion budget windfall was revealed in a secret WorkCover report
obtained under freedom of information by the NSW Law Society.
“The contentious WorkCover report, dated July 2005, showed the WorkCover
Authority expected to pay off its $2 billion deficit by 2012.
Instead, it had an unexpected $85 million surplus only one year later.
“Labor used most of the $2 billion surplus to pay off WorkCover’s budget deficit,
and Minister Della Bosca refused to say how they will spend the remaining
$85 million.
“It’s a disgrace that while 9 out of 10 workers in NSW are being denied fair
compensation, WorkCover has reaped almost $2 billion in surplus revenue.
“The $2 billion WorkCover surplus has come at the expense of fair compensation
for NSW workers following Labor’s cuts to worker’s entitlements in 2001.
“This revelation proves that Labor’s harsh worker’s compensation laws
introduced in 2001 are depriving injured workers of their entitlements.
“How can Minister Della Bosca take pride in the NSW worker’s compensation
scheme which is not indexed to inflation and is so restrictive?“I was a member
of the NSW Upper House committee that recommended unanimously last
year to bring WorkCover in line with the public liability scheme * advice that was
rejected by Minister Della Bosca.
“The $2 billion budget windfall clearly shows that WorkCover can afford to pay
fairer compensation to injured workers in NSW.
“The Greens will continue to push for a better deal for injured workers,”
Ms Rhiannon said. 12/12/2006
aware of this possibility and have a large surplus then why havent they trialed
it?
This size surplus for instance, could help those injured workers hurt during
Kennetts Law in Victoria to be able to access some form of compensation?
but it seems that injured workers are the last things on the minds of Government
and worksafe in all states.
Greens MP and industrial relations spokesperson, Lee Rhiannon today
challenged the Industrial Relations Minister, John Della Bosca in parliamentary
question time to direct part of a $2 billion WorkCover budget windfall towards
injured workers.
“The Greens have challenged the government to direct an $85 million budget
surplus from its $2 billion WorkCover windfall towards fairer compensation for
injured workers,” said Ms Rhiannon.
“The $2 billion budget windfall was revealed in a secret WorkCover report
obtained under freedom of information by the NSW Law Society.
“The contentious WorkCover report, dated July 2005, showed the WorkCover
Authority expected to pay off its $2 billion deficit by 2012.
Instead, it had an unexpected $85 million surplus only one year later.
“Labor used most of the $2 billion surplus to pay off WorkCover’s budget deficit,
and Minister Della Bosca refused to say how they will spend the remaining
$85 million.
“It’s a disgrace that while 9 out of 10 workers in NSW are being denied fair
compensation, WorkCover has reaped almost $2 billion in surplus revenue.
“The $2 billion WorkCover surplus has come at the expense of fair compensation
for NSW workers following Labor’s cuts to worker’s entitlements in 2001.
“This revelation proves that Labor’s harsh worker’s compensation laws
introduced in 2001 are depriving injured workers of their entitlements.
“How can Minister Della Bosca take pride in the NSW worker’s compensation
scheme which is not indexed to inflation and is so restrictive?“I was a member
of the NSW Upper House committee that recommended unanimously last
year to bring WorkCover in line with the public liability scheme * advice that was
rejected by Minister Della Bosca.
“The $2 billion budget windfall clearly shows that WorkCover can afford to pay
fairer compensation to injured workers in NSW.
“The Greens will continue to push for a better deal for injured workers,”
Ms Rhiannon said. 12/12/2006
Monday, 21 July 2008
Solicitors Required
We are searching for solicitors who are interested in representing "Workcover
Victims" clients and have a genuine interest in legislations changes.
Please email mailto:workcovervictims@westnet.com.au
for more information.
Victims" clients and have a genuine interest in legislations changes.
Please email mailto:workcovervictims@westnet.com.au
for more information.
Victims Free to Sue Decades Later
This hearing is a break through for injured workers of the Kennett era and
beyond. Now that this case law is available, all injured workers who have
found themselves out of time for their claim can now go ahead and sue for
their injuries. Make an appointment with your legal representative asap.
VICTIMS of workplace accidents could now sue for damages decades
after the event, following a landmark High Court decision that will force
former ATSIC chairman Geoff Clark to defend claims he led the 1971
pack-rape of a 16-year-old girl.
The judgment, which was opposed by Justices Michael Kirby and William
Gummow, specifically applies to Victorian law, but will have ramifications
around the nation.
It means that more people who have suffered personal injuries will be able to
explore their rights beyond the statute of limitations. That will be the case
particularly in circumstances where there is delayed onset of injury or where
they do not have access to information or knowledge about the cause of their
injury.
Cases that could now proceed include medical negligence actions in which, for
example, a surgical object is left inside a patient but the effects are not known
for many years; and cases involving exposure to occupational hazards, such as
cancer-causing chemicals, where an illness takes years to emerge, also where
psychiatric injury has taken years to manifest.
Even those cases in which a claimant knows they have an injury, but does not
become aware for years later than the injury was caused by someone else's
negligence, would be affected by yesterday's judgment.
Source: Natasha Robinson, The Australian. 21.07.06
beyond. Now that this case law is available, all injured workers who have
found themselves out of time for their claim can now go ahead and sue for
their injuries. Make an appointment with your legal representative asap.
VICTIMS of workplace accidents could now sue for damages decades
after the event, following a landmark High Court decision that will force
former ATSIC chairman Geoff Clark to defend claims he led the 1971
pack-rape of a 16-year-old girl.
The judgment, which was opposed by Justices Michael Kirby and William
Gummow, specifically applies to Victorian law, but will have ramifications
around the nation.
It means that more people who have suffered personal injuries will be able to
explore their rights beyond the statute of limitations. That will be the case
particularly in circumstances where there is delayed onset of injury or where
they do not have access to information or knowledge about the cause of their
injury.
Cases that could now proceed include medical negligence actions in which, for
example, a surgical object is left inside a patient but the effects are not known
for many years; and cases involving exposure to occupational hazards, such as
cancer-causing chemicals, where an illness takes years to emerge, also where
psychiatric injury has taken years to manifest.
Even those cases in which a claimant knows they have an injury, but does not
become aware for years later than the injury was caused by someone else's
negligence, would be affected by yesterday's judgment.
Source: Natasha Robinson, The Australian. 21.07.06
Monday, 23 June 2008
Common Law Damages – It’s your Right.
Common Law is made by Juries.
Even section 4 of the Jury Act 1977 No: 18 says, "verdict includes
an assessment in civil proceedings".
Damages: a sum of money awarded by a court as compensation f
or a tort or a breach of contract. Damages are usually awarded as
a lump sum.
The general principle is that the plaintiff is entitled to full
compensation for his losses.Therefore, if a person believes that a
settlement by an insurance company(or any other institution)
is inadequate or unfair, then he or she can take their claim to a
Court where a Jury will make an award for damages
which they, by their conscience, decide is right.
A Judge then does what the Jury tells him to do, and makes
it an Order of the Court. Failure to comply with a Court Order is
an offence and a Jury has the power to imprison the offender.
All Australians have the Right to go to Court and have a Jury
administer Justice.
No Parliament has the power to take away the Rights of the
People – especially, the Right of access to their own Law, ie:
Common Law, and to the source of that Law, ie: Juries.
Legislation passed by the NSW Parliament in 2001, to remove
the Right to Trial by Jury in the District and Supreme Courts,
is not only invalid because it is beyond the Parliament’s power,
ie: ultra vires, it is Treachery of the highest order.
The Right to Trial by Jury was guaranteed by the Charters of
Liberty, such as Magna Carta in 1215, Petition of Right 1627,
Habeas Corpus 1641 and Bill of Rights 1688, which were
entrenched as Constitutional Law into Australia in 1828.
Schemes such as WorkCover administered by Statutory
Bodies cannot deny anyone access to Trial by Jury.
The Right to Trial by Jury is INALIENABLE, ie: it cannot
be taken away and it cannot be given away.
Written by John Wilson, PO Box 4520, North Rocks, NSW, 2151.
Even section 4 of the Jury Act 1977 No: 18 says, "verdict includes
an assessment in civil proceedings".
Damages: a sum of money awarded by a court as compensation f
or a tort or a breach of contract. Damages are usually awarded as
a lump sum.
The general principle is that the plaintiff is entitled to full
compensation for his losses.Therefore, if a person believes that a
settlement by an insurance company(or any other institution)
is inadequate or unfair, then he or she can take their claim to a
Court where a Jury will make an award for damages
which they, by their conscience, decide is right.
A Judge then does what the Jury tells him to do, and makes
it an Order of the Court. Failure to comply with a Court Order is
an offence and a Jury has the power to imprison the offender.
All Australians have the Right to go to Court and have a Jury
administer Justice.
No Parliament has the power to take away the Rights of the
People – especially, the Right of access to their own Law, ie:
Common Law, and to the source of that Law, ie: Juries.
Legislation passed by the NSW Parliament in 2001, to remove
the Right to Trial by Jury in the District and Supreme Courts,
is not only invalid because it is beyond the Parliament’s power,
ie: ultra vires, it is Treachery of the highest order.
The Right to Trial by Jury was guaranteed by the Charters of
Liberty, such as Magna Carta in 1215, Petition of Right 1627,
Habeas Corpus 1641 and Bill of Rights 1688, which were
entrenched as Constitutional Law into Australia in 1828.
Schemes such as WorkCover administered by Statutory
Bodies cannot deny anyone access to Trial by Jury.
The Right to Trial by Jury is INALIENABLE, ie: it cannot
be taken away and it cannot be given away.
Written by John Wilson, PO Box 4520, North Rocks, NSW, 2151.
Saturday, 21 June 2008
Workplace bullies cost taxpayers $1m
By Richard Baker State Political Reporter, October 7, 2004.
Victorian taxpayers face a massive bill for workplace bullying offences that
occur in State Government departments and agencies.
Documents tabled in State Parliament show that six bullying cases from last
year involving two government departments and one agency cost almost $1
million in settlement expenses and increases in WorkCover premiums.
Details of the bullying claims came as the Community and Public Sector Union
yesterday said one-third of public servants it surveyed, on behalf of WorkCover,
reported being the victims of bullying.
Further costs of bullying in the public service are expected to be revealed in
coming weeks as more departments and agencies disclose the extent of claims
and increases in WorkCover premiums.
The Opposition has submitted questions on notice to all ministers asking them
to disclose the cost of bullying claims made against departments and agencies
under their control during 2003.
Community and Public Sector Union assistant secretary Jim Walton yesterday
said bullying was a big problem in the public sector workforce.
Mr Walton said hundreds of public servants had been involved in the ongoing
survey. They had reported bullying offences that included physical violence,
harassment, intimidation and retribution.
The Education Department has recently received two WorkCover warnings -
one after a school services worker reported having a microphone cord placed
around their neck, and another when a school worker reported being physically
assaulted by a superior.
Mr Walton said the union was seeking talks with the Government to ensure
"stringent bullying policies" were implemented. "Our main concern is the
degree of independence of investigations. Often it is the person accused of
bullying that is left to deal with it," he said.
Documents show that VicRoads had five bullying offences reported last year
and the Department of Infrastructure faced one bullying allegation. Both bodies
are under the control of Transport Minister Peter Batchelor.
Four of the VicRoads bullying cases resulted in WorkCover claims that cost a
total of $151,400. The Infrastructure Department was ordered to pay $2399.
The four claims against VicRoads have increased its WorkCover premium by
$605,600.
Five bullying cases were reported to the Department of Sustainability
and Environment and other agencies under the control of Environment Minister
John Thwaites last year. Three of the complaints have resulted in WorkCover
investigations, with the total cost of the only claim to be competed so far
being $152,128. The completed claim had a huge impact on the department's
WorkCover premium, raising the cost by $84,319.
Opposition WorkCover spokesman Bill Forwood yesterday said a disturbing
trend was emerging that showed big internal problems in the public sector
workforce.
A spokeswoman for WorkCover Minister Rob Hulls said bullying in any
workplace was unacceptable and that the public service should set an example.
"The Bracks Government introduced guidelines for the prevention of bullying
and violence at work last year. This was endorsed by the Australian Industry
Group, Victorian Employers' Chamber of Commerce and Industry, Trades Hall
and the Master Builders Association," the spokeswoman said.
Bullying claimed a high profile scalp this year when former Queensland tourism
minister Merri Rose quit Premier Peter Beattie's front bench after a bullying
complaint laid by her former secretary was upheld.
Victorian taxpayers face a massive bill for workplace bullying offences that
occur in State Government departments and agencies.
Documents tabled in State Parliament show that six bullying cases from last
year involving two government departments and one agency cost almost $1
million in settlement expenses and increases in WorkCover premiums.
Details of the bullying claims came as the Community and Public Sector Union
yesterday said one-third of public servants it surveyed, on behalf of WorkCover,
reported being the victims of bullying.
Further costs of bullying in the public service are expected to be revealed in
coming weeks as more departments and agencies disclose the extent of claims
and increases in WorkCover premiums.
The Opposition has submitted questions on notice to all ministers asking them
to disclose the cost of bullying claims made against departments and agencies
under their control during 2003.
Community and Public Sector Union assistant secretary Jim Walton yesterday
said bullying was a big problem in the public sector workforce.
Mr Walton said hundreds of public servants had been involved in the ongoing
survey. They had reported bullying offences that included physical violence,
harassment, intimidation and retribution.
The Education Department has recently received two WorkCover warnings -
one after a school services worker reported having a microphone cord placed
around their neck, and another when a school worker reported being physically
assaulted by a superior.
Mr Walton said the union was seeking talks with the Government to ensure
"stringent bullying policies" were implemented. "Our main concern is the
degree of independence of investigations. Often it is the person accused of
bullying that is left to deal with it," he said.
Documents show that VicRoads had five bullying offences reported last year
and the Department of Infrastructure faced one bullying allegation. Both bodies
are under the control of Transport Minister Peter Batchelor.
Four of the VicRoads bullying cases resulted in WorkCover claims that cost a
total of $151,400. The Infrastructure Department was ordered to pay $2399.
The four claims against VicRoads have increased its WorkCover premium by
$605,600.
Five bullying cases were reported to the Department of Sustainability
and Environment and other agencies under the control of Environment Minister
John Thwaites last year. Three of the complaints have resulted in WorkCover
investigations, with the total cost of the only claim to be competed so far
being $152,128. The completed claim had a huge impact on the department's
WorkCover premium, raising the cost by $84,319.
Opposition WorkCover spokesman Bill Forwood yesterday said a disturbing
trend was emerging that showed big internal problems in the public sector
workforce.
A spokeswoman for WorkCover Minister Rob Hulls said bullying in any
workplace was unacceptable and that the public service should set an example.
"The Bracks Government introduced guidelines for the prevention of bullying
and violence at work last year. This was endorsed by the Australian Industry
Group, Victorian Employers' Chamber of Commerce and Industry, Trades Hall
and the Master Builders Association," the spokeswoman said.
Bullying claimed a high profile scalp this year when former Queensland tourism
minister Merri Rose quit Premier Peter Beattie's front bench after a bullying
complaint laid by her former secretary was upheld.
Friday, 20 June 2008
Fierce attack on Bracks over rights
The Age - May 19 2003, By Misha Ketchell
Traditional allies of the Labor Party have combined in an angry attack on the
Bracks Government over what they claim is a plan to strip fundamental legal
rights from Victorians. Labor law firms, civil liberties groups and the Law
Institute of Victoria are backing an expensive media campaign to try to
pressure the Government to dump its plan to resolve the medical
indemnity crisis.According to the labor law firms, the Government has been
secretly planning to remove the right to sue for pain and suffering from
people with minor injuries.Peter Gordon, a partner in Labor law firm
Slater & Gordon, yesterday said the plan was more draconian than
Jeff Kennett's removal of common law rights for injured workers in the
mid-1990s - a move that provoked angry street marches before it was
reversed by the Bracks Government.
With the backing of three other prominent law firms, Maurice Blackburn
Cashman, Holding Redlich and Ryan Carlisle Thomas, Mr Gordon yesterday
took out prime-time television and newspaper advertisements posing the
question: "Mr Bracks, who gave you the right to take away our rights?"
Mr Gordon said his firm would withdraw financial support from ALP,
which has amounted to tens of thousands of dollars in some years.
"But this means a lot more than just abandoning the party.
This means attacking the party. It means attacking the Government.
It means fighting these reforms," he said.
Mr Gordon said the legislation, due to be introduced in the next two weeks,
would remove the right to sue for pain and suffering from people who were
injured as a result of someone else's negligence but who suffered less than
5 per cent permanent incapacitation.
According to Mr Gordon the changes meant that if you were savagely
mauled by your neighbour's dog but fully recovered you would have no
right to sue. And if one of a man's testicles was mistakenly removed, but
he could still have sex, he also would not be able to sue the doctor for
pain and suffering.
Peter Redlich, chairman of Holding Redlich and a former ALP president, said:
"I think this is primarily a social justice issue. The principle of social justice is
that you look after the victim, not the perpetrator."
Michael Brett Young, managing partner of Maurice Blackburn Cashman,
said the planned reforms were draconian and unnecessary. "This is a knee-jerk
reaction," he said.
The ALP state conference yesterday passed a motion opposing any attempt
to remove the common law right of Victorians to sue for pain and suffering.
Greg Connellan, president of Liberty Victoria, said the proposed reforms
were a fundamental breach of civil liberties.
Bill O'Shea, president of the Law Institute of Victoria, said he had written to
Premier Steve Bracks warning against the move. "This is the removal of a
fundamental right to justice for all Victorians."
AMA Victorian President Mukesh Haikerwal played down the fears, saying
the law firms were scaremongers and that those seriously injured as result
of negligence would retain their rights. Mr Haikerwal said the reforms were
needed because the soaring cost of medical indemnity insurance was forcing
some doctors to give up practice.
A State Government spokesman yesterday confirmed the reforms would be
introduced into parliament in the next two weeks. He said the Government
faced a difficult task to come up with a solution that balanced competing
priorities.
Pain and suffering, but no money Cases where the right to sue may be lost:
A man is mauled by a neighbour's dog and spends weeks in hospital but later
recovers.
A boy is sexually abused by a priest and suffers psychological trauma but no
"permanent impairment".
A woman breaks her hip in the Arthurs Seat chair collapse but later
recovers.
A man has one of his testicles mistakenly removed by a doctor.
Traditional allies of the Labor Party have combined in an angry attack on the
Bracks Government over what they claim is a plan to strip fundamental legal
rights from Victorians. Labor law firms, civil liberties groups and the Law
Institute of Victoria are backing an expensive media campaign to try to
pressure the Government to dump its plan to resolve the medical
indemnity crisis.According to the labor law firms, the Government has been
secretly planning to remove the right to sue for pain and suffering from
people with minor injuries.Peter Gordon, a partner in Labor law firm
Slater & Gordon, yesterday said the plan was more draconian than
Jeff Kennett's removal of common law rights for injured workers in the
mid-1990s - a move that provoked angry street marches before it was
reversed by the Bracks Government.
With the backing of three other prominent law firms, Maurice Blackburn
Cashman, Holding Redlich and Ryan Carlisle Thomas, Mr Gordon yesterday
took out prime-time television and newspaper advertisements posing the
question: "Mr Bracks, who gave you the right to take away our rights?"
Mr Gordon said his firm would withdraw financial support from ALP,
which has amounted to tens of thousands of dollars in some years.
"But this means a lot more than just abandoning the party.
This means attacking the party. It means attacking the Government.
It means fighting these reforms," he said.
Mr Gordon said the legislation, due to be introduced in the next two weeks,
would remove the right to sue for pain and suffering from people who were
injured as a result of someone else's negligence but who suffered less than
5 per cent permanent incapacitation.
According to Mr Gordon the changes meant that if you were savagely
mauled by your neighbour's dog but fully recovered you would have no
right to sue. And if one of a man's testicles was mistakenly removed, but
he could still have sex, he also would not be able to sue the doctor for
pain and suffering.
Peter Redlich, chairman of Holding Redlich and a former ALP president, said:
"I think this is primarily a social justice issue. The principle of social justice is
that you look after the victim, not the perpetrator."
Michael Brett Young, managing partner of Maurice Blackburn Cashman,
said the planned reforms were draconian and unnecessary. "This is a knee-jerk
reaction," he said.
The ALP state conference yesterday passed a motion opposing any attempt
to remove the common law right of Victorians to sue for pain and suffering.
Greg Connellan, president of Liberty Victoria, said the proposed reforms
were a fundamental breach of civil liberties.
Bill O'Shea, president of the Law Institute of Victoria, said he had written to
Premier Steve Bracks warning against the move. "This is the removal of a
fundamental right to justice for all Victorians."
AMA Victorian President Mukesh Haikerwal played down the fears, saying
the law firms were scaremongers and that those seriously injured as result
of negligence would retain their rights. Mr Haikerwal said the reforms were
needed because the soaring cost of medical indemnity insurance was forcing
some doctors to give up practice.
A State Government spokesman yesterday confirmed the reforms would be
introduced into parliament in the next two weeks. He said the Government
faced a difficult task to come up with a solution that balanced competing
priorities.
Pain and suffering, but no money Cases where the right to sue may be lost:
A man is mauled by a neighbour's dog and spends weeks in hospital but later
recovers.
A boy is sexually abused by a priest and suffers psychological trauma but no
"permanent impairment".
A woman breaks her hip in the Arthurs Seat chair collapse but later
recovers.
A man has one of his testicles mistakenly removed by a doctor.
Saturday, 14 June 2008
South Australian Workercover Campaign Fact Sheet
This paper has been submitted for those workcover victims in South Australia
The Workers Compensation System in SA was designed in 1986 to provide
rehabilitation and return to work for injured workers and also compensation
for their injuries.
The aim was to create a fair system for workers which neither blames the
worker, or the employer and therefore contains no ability to sue for damages.
The scheme is funded through a levy on employers.
The finances of the scheme have not been good for some time due to the reduction
of this levy by the previous Liberal Government, the outsourcing of claims to
private insurance companies and general poor management.
When the Rann Government came to office they appointed a new Board which
put in place a number of measures which have improved the funding position
of the scheme but not the projected long term liability which is calculated by the
actuary. The levy paid by employers in SA is higher than in other states so there
is pressure from business to reduce their levy payments. Last year the Board
made recommendations to the Minister to change the law by severely cutting
workers entitlements in order to change the liability projection.
The Union Reps on the Board did not support these recommendations and
put in a minority report.
The Minister announced a Review into the Board recommendations which
reported to Government in late December 2007.
Without any consultation with Unions or the community (or Members of
Parliament) a Bill was drafted and put into Parliament with the announcement
that the Government would also move to reduce employer levies.
What does the Government Bill propose?
13 weeks after injury salary is reduced by 20% if not yet returned to work.
Nearly all workers kicked off all payments if still on WorkCover two and a
half years after the injury. This will be retrospective so anyone currently on
the scheme will be affected.
Payments for loss of limb or body function significantly reduced. If a worker
disputes a decision about a WorkCover claim they will have their pay suspended
while they are in dispute. No financial penalty on employers who dispute.
No increased penalties for employers who do not take their injured workers
back and no penalties for service providers who do not fulfill their obligations
to return people to work.
Reduction of democratic control of Parliament with bits of legislation now set
through WorkCover policy. Removal of the obligations for employers to find
work that is similar to the previous work of injured workers making it easier
to give them the bad jobs and force them out. No ability to sue employers for
negligence or damages. Levy cut for employers
What does it mean for injured workers?
If the Bill proceeds, injured workers will have their pay cut and their rights
reduced. Although most work injuries are fixed in under 13 weeks some take
longer. These workers will have to live on 20% less pay while they recover
and this will add financial stress. Low paid workers will be paid lower than
the legal minimum wage. At 2 and a half years there will be a work capacity
test and if there is any capacity to work even if they do not have a job, then
the worker will be kicked off payments. This part of the Bill is retrospective
so anyone currently on the scheme would be affected.
These people will be forced onto Commonwealth benefits It is likely that
workers would no longer be able to afford to complain if they are not happy
with the way their workers comp claim is dealt with as they will have their
pay suspended if they do so
What does it mean for employers?
There will be a reduction in their costs as their levy payments will be reduced.
Also there is a reduction in their obligations to employ their injured workers,
no financial penalty for doing the wrong thing by their workers and it is possible
that they will not bother much with supporting workers to return to work or get
better because they know that if they wait 2 and a half years the worker will be
off the scheme anyway. Those employers who currently are self insured and do
not have financial problems with their workers compensation will get a windfall
as they will have their obligations significantly reduced.
What do the unions want?
Firstly we want meaningful negotiations with the Government which should
have happened before the Bill was drafted or placed in Parliament. We want to
minimize the impact of any changes to the law on injured workers and ensure
that any changes are balanced between the interests of injured workers
and employers. We also want to help with the financial issues facing the scheme
by Improving the management of injured workers including ensuring that
the agent, rehab provider, medical profession and lawyers all do their jobs well
with a focus on speedy safe return to work. Ensure that employers are penalized
for not giving suitable duties for their injured workers. Improving access for
injured workers to retraining. Improving occupational health and safety to
prevent injuries in the first place.
What about the unfunded liability?
In simple terms, the unfunded liability is the balance between the assets of
WorkCover and the future payments to injured workers which are an estimated
over the next 40 years by an actuary.The actuary uses complex calculations,
based on a range of assumptions, to make an estimate of the value in current
dollars of all the costs associated with current claims. This is an amount the actuary
expects will be paid over the life of those claims, but is not payable today, tomorrow
or even this year. The unfunded liability does not effect the state economy or the
AAA rating.
Is it still the fairest scheme in the country?
The Premier has said that this scheme would still be the fairest in the country
if these changes are made. This is not true. Most of these changes are modeled
on the Victorian system which was introduced by Jeff Kennett. The big difference
is that Victorian workers are able to sue their employer for negligence and
damages. This means that they can receive payments from their employer on
top of workers comp payments. This also means that employers often take
out additional insurance on top of their Workers compensation levy which means
they pay more.
This Bill would make it "fairer" for employers but not fairer for
injured workers.
What’s the timeframe?
If the Liberal party supports this Bill it could be made law before July this year.
That is why it is important that we campaign publicly and make our voices heard.
What can be done?
We need to let the Premier know that he should not proceed with the bill in
its current form. Join the campaign.
Go the website; saveworkcovernow.wikispaces.com.
You can also assist by writing letters to the Premier, your
local MP's,Worksafe, signing the petition, helping with
leafleting, talking to your friends, family and workmates
and joining in with the public actions
The Workers Compensation System in SA was designed in 1986 to provide
rehabilitation and return to work for injured workers and also compensation
for their injuries.
The aim was to create a fair system for workers which neither blames the
worker, or the employer and therefore contains no ability to sue for damages.
The scheme is funded through a levy on employers.
The finances of the scheme have not been good for some time due to the reduction
of this levy by the previous Liberal Government, the outsourcing of claims to
private insurance companies and general poor management.
When the Rann Government came to office they appointed a new Board which
put in place a number of measures which have improved the funding position
of the scheme but not the projected long term liability which is calculated by the
actuary. The levy paid by employers in SA is higher than in other states so there
is pressure from business to reduce their levy payments. Last year the Board
made recommendations to the Minister to change the law by severely cutting
workers entitlements in order to change the liability projection.
The Union Reps on the Board did not support these recommendations and
put in a minority report.
The Minister announced a Review into the Board recommendations which
reported to Government in late December 2007.
Without any consultation with Unions or the community (or Members of
Parliament) a Bill was drafted and put into Parliament with the announcement
that the Government would also move to reduce employer levies.
What does the Government Bill propose?
13 weeks after injury salary is reduced by 20% if not yet returned to work.
Nearly all workers kicked off all payments if still on WorkCover two and a
half years after the injury. This will be retrospective so anyone currently on
the scheme will be affected.
Payments for loss of limb or body function significantly reduced. If a worker
disputes a decision about a WorkCover claim they will have their pay suspended
while they are in dispute. No financial penalty on employers who dispute.
No increased penalties for employers who do not take their injured workers
back and no penalties for service providers who do not fulfill their obligations
to return people to work.
Reduction of democratic control of Parliament with bits of legislation now set
through WorkCover policy. Removal of the obligations for employers to find
work that is similar to the previous work of injured workers making it easier
to give them the bad jobs and force them out. No ability to sue employers for
negligence or damages. Levy cut for employers
What does it mean for injured workers?
If the Bill proceeds, injured workers will have their pay cut and their rights
reduced. Although most work injuries are fixed in under 13 weeks some take
longer. These workers will have to live on 20% less pay while they recover
and this will add financial stress. Low paid workers will be paid lower than
the legal minimum wage. At 2 and a half years there will be a work capacity
test and if there is any capacity to work even if they do not have a job, then
the worker will be kicked off payments. This part of the Bill is retrospective
so anyone currently on the scheme would be affected.
These people will be forced onto Commonwealth benefits It is likely that
workers would no longer be able to afford to complain if they are not happy
with the way their workers comp claim is dealt with as they will have their
pay suspended if they do so
What does it mean for employers?
There will be a reduction in their costs as their levy payments will be reduced.
Also there is a reduction in their obligations to employ their injured workers,
no financial penalty for doing the wrong thing by their workers and it is possible
that they will not bother much with supporting workers to return to work or get
better because they know that if they wait 2 and a half years the worker will be
off the scheme anyway. Those employers who currently are self insured and do
not have financial problems with their workers compensation will get a windfall
as they will have their obligations significantly reduced.
What do the unions want?
Firstly we want meaningful negotiations with the Government which should
have happened before the Bill was drafted or placed in Parliament. We want to
minimize the impact of any changes to the law on injured workers and ensure
that any changes are balanced between the interests of injured workers
and employers. We also want to help with the financial issues facing the scheme
by Improving the management of injured workers including ensuring that
the agent, rehab provider, medical profession and lawyers all do their jobs well
with a focus on speedy safe return to work. Ensure that employers are penalized
for not giving suitable duties for their injured workers. Improving access for
injured workers to retraining. Improving occupational health and safety to
prevent injuries in the first place.
What about the unfunded liability?
In simple terms, the unfunded liability is the balance between the assets of
WorkCover and the future payments to injured workers which are an estimated
over the next 40 years by an actuary.The actuary uses complex calculations,
based on a range of assumptions, to make an estimate of the value in current
dollars of all the costs associated with current claims. This is an amount the actuary
expects will be paid over the life of those claims, but is not payable today, tomorrow
or even this year. The unfunded liability does not effect the state economy or the
AAA rating.
Is it still the fairest scheme in the country?
The Premier has said that this scheme would still be the fairest in the country
if these changes are made. This is not true. Most of these changes are modeled
on the Victorian system which was introduced by Jeff Kennett. The big difference
is that Victorian workers are able to sue their employer for negligence and
damages. This means that they can receive payments from their employer on
top of workers comp payments. This also means that employers often take
out additional insurance on top of their Workers compensation levy which means
they pay more.
This Bill would make it "fairer" for employers but not fairer for
injured workers.
What’s the timeframe?
If the Liberal party supports this Bill it could be made law before July this year.
That is why it is important that we campaign publicly and make our voices heard.
What can be done?
We need to let the Premier know that he should not proceed with the bill in
its current form. Join the campaign.
Go the website; saveworkcovernow.wikispaces.com.
You can also assist by writing letters to the Premier, your
local MP's,Worksafe, signing the petition, helping with
leafleting, talking to your friends, family and workmates
and joining in with the public actions
Thursday, 12 June 2008
Torts 101 - Infliction of Emotional Distress -
An option to think about?
I dont know if this law has been tried in Australia yet but I am sure it will be .The fact is that some of us (injured pre October 20th 1999)have lost our common law rights to sue and now have to have a 30% injury to be classed as severe enough to be entiltled to the ICRP.
Many of us need another avenue to take and I am thinking this could be an option, if a lawyer out there is willing to take a chance!
I am sure that who ever it was would be extremely busy as there is thousands of us that have been left out in the cold by the VWA and are being ignored!
We need a legal advocate to have this system changed and be made accountable for
their actions and the actions of many employers.
I dont know if this law has been tried in Australia yet but I am sure it will be .The fact is that some of us (injured pre October 20th 1999)have lost our common law rights to sue and now have to have a 30% injury to be classed as severe enough to be entiltled to the ICRP.
Many of us need another avenue to take and I am thinking this could be an option, if a lawyer out there is willing to take a chance!
I am sure that who ever it was would be extremely busy as there is thousands of us that have been left out in the cold by the VWA and are being ignored!
We need a legal advocate to have this system changed and be made accountable for
their actions and the actions of many employers.
The Latest from Craig Smith's Blog
California has long recognized the right to recover damages for the intentional and unreasonable infliction of mental or emotional distress which results in foreseeable physical injury to plaintiff. California courts have also acknowledged the right to recover damages for emotional distress alone, without consequent physical injuries, in cases involving extreme and outrageous intentional invasions of one's mental and emotional tranquility.
(State Rubbish etc. Assn. v. Siliznoff (1952) 38 Cal.2d 330, 336-337)
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS- ie; (Workplacebullying,discrimination)
The elements of a prima facie case for the tort of intentional infliction of emotional distress are:
(1) outrageous conduct by the defendant;
(2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff's suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Alcorn v. Anbro Engineering, Inc (1970) 2 Cal.3d 493, 497-498
(1) outrageous conduct by the defendant;
(2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress;
(3) the plaintiff's suffering severe or extreme emotional distress; and
(4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Alcorn v. Anbro Engineering, Inc (1970) 2 Cal.3d 493, 497-498
EMOTIONAL DISTRESS-DEFINED (the family suffers this as well as the claimant)
The term "emotional distress" means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.
SEVERE-DEFINED
The word "severe," in the phrase "severe emotional distress," means substantial or enduring as distinguished from trivial or transitory. Severe emotional distress is emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it. In determining the severity of emotional distress consideration is given to its intensity and duration.
The Restatement view is that liability "does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities," but only to conduct so extreme and outrageous "as to go beyond all possible bonds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Rest. 2d Torts, § 46, com. d; see Prosser, Law of Torts, supra, at pp. 46-47.) "The emotional distress must in fact exist, and it must be severe." (Prosser, Law of Torts, supra, p. 51; Rest.2d Torts, supra, § 46, Com. j.)
EXTREME AND OUTRAGEOUS CONDUCT-DEFINED
Extreme and outrageous conduct is conduct which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.
Extreme and outrageous conduct is not mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.
Extreme and outrageous conduct, however, is conduct which would cause an average member of the community to immediately react in outrage.
Extreme and outrageous conduct is not mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. All persons must necessarily be expected and required to be hardened to a certain amount of rough language and to occasional acts that are definitely inconsiderate and unkind.
Extreme and outrageous conduct, however, is conduct which would cause an average member of the community to immediately react in outrage.
EFFECT OF RELATIONSHIP OF PARTIES
The extreme and outrageous character of the conduct of a defendant may arise from an abuse of a position, or relationship to a plaintiff, which gives such a defendant actual or apparent authority over a plaintiff, or power to affect a plaintiff's interests.
SUSCEPTIBILITY OF PLAINTIFF
The extreme and outrageous character of a defendant's conduct may arise from defendant's knowledge that a plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity. Conduct may become extreme and outrageous when a defendant proceeds in the face of such knowledge, where it would not be so if defendant did not know.
INTENTIONAL AND RECKLESS -- DEFINED
A defendant intended to inflict emotional distress if it is established that he or she desired to cause such distress or knew that such distress was substantially certain to result from his or her conduct.
A defendant's conduct is in reckless disregard of the probability of causing emotional distress if he or she has knowledge of a high degree of probability that emotional distress will result and acts with deliberate disregard of that probability or with a conscious disregard of the probable results.
PRIVILEGE
Conduct, which under other conditions would be extreme and outrageous, may be privileged and a defendant is not liable:
When a defendant has done no more than to insist upon his or her legal rights in a permissible way, even though he or she is well aware that such insistence is certain to cause emotional distress. If you find that defendant in good faith believed that he or she was acting under a legal right, he or she shall be considered as having been acting under such right even though, in fact, he or she had no such right.
When a defendant makes statements in the course of an official proceeding.
When a defendant has done no more than to insist upon his or her legal rights in a permissible way, even though he or she is well aware that such insistence is certain to cause emotional distress. If you find that defendant in good faith believed that he or she was acting under a legal right, he or she shall be considered as having been acting under such right even though, in fact, he or she had no such right.
When a defendant makes statements in the course of an official proceeding.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The elements of a claim of negligent infliction of emotional distress are:
1. The defendant engaged in negligent conduct or a willful violation of a statutory standard;
2. The plaintiff suffered serious emotional distress;
3. The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.
1. The defendant engaged in negligent conduct or a willful violation of a statutory standard;
2. The plaintiff suffered serious emotional distress;
3. The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.
Serious emotional distress is an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.
CAUSES OF NERVOUS SHOCK
A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril.
BYSTANDER RECOVERY OF EMOTIONAL DISTRESS
Bystanders may recover for emotional distress damage only under very limited circumstances. The emotional disturbance suffered must be "serious and verifiable," and must be tied as a matter of proximate causation to the observation of the serious injury or death of an immediate family member. Finally, the plaintiff himself must have been in the "zone of danger" i.e, must have been exposed to a risk of bodily harm by the conduct of the defendant.
The essential elements of a claim of wrongful infliction of emotional distress upon a bystander are:
1. The defendant was negligent; or the defendant manufactured or supplied a defective product;
2. Defendant's negligence or defective product was a cause of injury or death to the victim;
3. Plaintiff was the spouse, parent, or child, of the victim;
4. Plaintiff was present at the scene of the injury-producing event or accident at the time it occurred;
5. Plaintiff was then aware that such event or accident caused the injury to the victim;
6. As a result, plaintiff suffered serious emotional distress.
Serious emotional distress is an emotional reaction beyond that which would be anticipated in a witness not related to the injured person and which is not an abnormal response to the circumstances. It is found when a reasonable person would be unable to cope with the mental distress caused by the circumstances of the accident and injury to the near relative.
© 2006 by lawschoolhelp.com and Craig A. Smith
The essential elements of a claim of wrongful infliction of emotional distress upon a bystander are:
1. The defendant was negligent; or the defendant manufactured or supplied a defective product;
2. Defendant's negligence or defective product was a cause of injury or death to the victim;
3. Plaintiff was the spouse, parent, or child, of the victim;
4. Plaintiff was present at the scene of the injury-producing event or accident at the time it occurred;
5. Plaintiff was then aware that such event or accident caused the injury to the victim;
6. As a result, plaintiff suffered serious emotional distress.
Serious emotional distress is an emotional reaction beyond that which would be anticipated in a witness not related to the injured person and which is not an abnormal response to the circumstances. It is found when a reasonable person would be unable to cope with the mental distress caused by the circumstances of the accident and injury to the near relative.
© 2006 by lawschoolhelp.com and Craig A. Smith
Saturday, 7 June 2008
Letter to Justice Terry Sheahan - July 5th 2001 - Common Law Rights
The submission below reflects the thoughts of a very experianced Solicitor
namely Paul Mulvaney.
Mr Mulvanely clearly explains the faults with the Workcover system and
also the disasterous Comcare system previously used.
I beleive that the minister Mr Holding and Workcovers CEO Mr Tweedly
should be taking action after reading this report as it clearly shows the
inadequacy of this system and the obvious discrimination handed to
the workcover victims injured before 20th October 1999.
namely Paul Mulvaney.
Mr Mulvanely clearly explains the faults with the Workcover system and
also the disasterous Comcare system previously used.
I beleive that the minister Mr Holding and Workcovers CEO Mr Tweedly
should be taking action after reading this report as it clearly shows the
inadequacy of this system and the obvious discrimination handed to
the workcover victims injured before 20th October 1999.
As we are now in 2008 I believe that the leglislation should be providing
the following:
the following:
1. Flexability from the VWA based on individual cases as all injuries are not the
same nor are the circumstances of the injury. The VWA is also not enforcing the
legislation as it is supposed to.
same nor are the circumstances of the injury. The VWA is also not enforcing the
legislation as it is supposed to.
2.Economic loss and Financial integrity to be restored and included in any payout; as many workers are denied the basic right of obtaining benefits from workcover even though it is supposed to be no fault insuarance and some are tied up in the court system for years
3. Finality to claims and litigation so as injured workers can get on with their rehab and life after injury
4. All legislation to be voted on by the people not just the Parliment as due to the morgan gallop
poll taken at the time showed 79% of the public were against the kennett changes.
5. Support for the Moral imperative.(If employer is at fault then they pay)
6. An apology and legal action to be taken for all workcover victims ;from Jeff Kennett who used dishonest financial statistics to obtain his legislation changes which inturn effected many thousands of injured workers
7. The Government is also liable in this issue due to the fact that they are ignoring complaints and not directing Workcover to enforce the legislation.
HGH:1608
Howard Harrison Direct Line: 9291 7112
Email: hharrison@codea.com.au
Howard Harrison Direct Line: 9291 7112
Email: hharrison@codea.com.au
10 August 2001
The Honourable Justice Terry Sheahan
Commission of Inquiry into Workers Compensation/Common Law Matters
Level 1, 60-70 Elizabeth Street
SYDNEY NSW 2000
Dear Judge
RE: COMMISSION OF INQUIRY - WORKERS COMPENSATION/COMMON
LAW MATTERS
I enclose herewith a paper prepared by Paul Mulvaney,
The Honourable Justice Terry Sheahan
Commission of Inquiry into Workers Compensation/Common Law Matters
Level 1, 60-70 Elizabeth Street
SYDNEY NSW 2000
Dear Judge
RE: COMMISSION OF INQUIRY - WORKERS COMPENSATION/COMMON
LAW MATTERS
I enclose herewith a paper prepared by Paul Mulvaney,
solicitor from Melbourne - 5 July 2001.
Hopefully this paper has already made its way to your Inquiry.
I believe this paper reflects a considered judgment by an
I believe this paper reflects a considered judgment by an
experienced practitioner well aware of the long and complex debate
within the ALP in relation to these issues and other aspects.
Paul is a previous member of the equivalent of the Compensation
Paul is a previous member of the equivalent of the Compensation
Court in Victoria. The paper acknowledges the valid criticisms of the
traditional common law model and succinctly puts the arguments in
favour of having the common law action as a part of a modern mixed
compensation system, it being a well-focused distributive mechanism
that provides an extra layer of compensation to the most seriously
injured and in the most reprehensible of circumstances.
Paul acknowledges that in the modern blended compensation system,
Paul acknowledges that in the modern blended compensation system,
the Common Law right must exist with appropriate conditions in respect
of reducing costs and transaction costs and there must be proper control
mechanisms which are equitable and predictable.
The Victorian Government has reinstated common law in a "limited" way.
There are clearly strong policy reasons for having a system in which
common law is available in cases where injured workers and their families
are most adversely affected economically or otherwise, particularly if there
is culpability on the part of the employer.
I hope I am not out of order in forwarding a copy of this to you.
I hope I am not out of order in forwarding a copy of this to you.
Kind regards
Howard Harrison
‘THE REINTRODUCTION OF COMMON LAW; THE VICTORIAN EXPERIENCE’
Introduction
In order to understand the ‘Victorian Experience’ of the
Howard Harrison
‘THE REINTRODUCTION OF COMMON LAW; THE VICTORIAN EXPERIENCE’
Introduction
In order to understand the ‘Victorian Experience’ of the
re-introduction of common law claims for work injuries,
it requires a brief historical review of the development and
relationship between common law, and statutory based
relationship between common law, and statutory based
no-fault compensation systems generally.
In the second half of the 19th century as injured workers
In the second half of the 19th century as injured workers
sought damages through resort to common law actions, they
were met by the judicial development and application of the
defences of common employment; contributory negligence,
defences of common employment; contributory negligence,
and voluntary assumption of risk (the ‘Unholy Trinity’)i.
Statute based workers’ compensation schemes were largely an
attempt by government to ameliorate the harsh and repressive
attempt by government to ameliorate the harsh and repressive
features of the common law.
Despite the eventual introduction of no-fault legislation in all
Despite the eventual introduction of no-fault legislation in all
Australian jurisdictions earlier last century, access to common law
remained, so that workers generally had at least a nominal choice of
either statutory or common law compensation. For much of this period
however, the two systems of compensation were in effect monolithic
however, the two systems of compensation were in effect monolithic
and independent systems, with very little interchange between the two.
In the main, injured workers were restricted to a conclusive election
between the two systems, and the interrelationship between the systems
was limited to an obligation to refund compensation payments from
any subsequent award of damages.
Over the last two decades there has been a significant development in the
any subsequent award of damages.
Over the last two decades there has been a significant development in the
structure of our compensation mechanisms both in the Commonwealth and
various States. There has been a move away from the twin monoliths, that is
largely independent structures of Common Law damages and statutory
compensation schemes, to a different model, which I will refer to as a
"blended system". The hallmarks of a blended system normally involve
some mix of income loss compensation by way of weekly payments
(usually partial); payment for medical and like expenses; statutory payment
for levels of impairment or defined disability; and highly regulated access to
the pursuit of common law damages.
These elements are essentially components of a single scheme where access to the
various components is tightly regulated by complex statutory provisions.
Within blended schemes there have been a number of trends that have been discernible
over recent years. These trends include the ever increasing restrictions on the pursuit of
common law damages and a limitation on the amount of damages that can be recovered.
The restrictions of access to common law damages utilise a number of mechanisms.
These include statutory designations of ‘certificate’ or ‘serious’ injury, and minimum
impairment payments or minimum requirements for economic loss.
These elements are essentially components of a single scheme where access to the
various components is tightly regulated by complex statutory provisions.
Within blended schemes there have been a number of trends that have been discernible
over recent years. These trends include the ever increasing restrictions on the pursuit of
common law damages and a limitation on the amount of damages that can be recovered.
The restrictions of access to common law damages utilise a number of mechanisms.
These include statutory designations of ‘certificate’ or ‘serious’ injury, and minimum
impairment payments or minimum requirements for economic loss.
In some jurisdictions the damages obtainable are restricted to non-economic loss,
others allow for a choice between economic or non-economic loss damages
.ii Similarly in some jurisdictions the pursuit of common law damages will
not finalise an entitlement to medical expenses.
These changes have been accompanied by a restructuring of maims payments to expand
the range of conditions that may be eligible, but at the same time to shift the focus from
generalised disability assessments to focused impairment assessments generally on the
basis of some ‘pseudo scientific’ assessment scheme, driven by the international lust for
measurement, management, and predicability.
The evolution in the nature of compensation schemes is an important factor
in assessing the role of common law in modern compensation schemes.
There has been much philosophical criticism on the role of common law damages
in modern compensation schemes. It is fair to say that this criticism reached its
most significant level during 1960’s and 1970’s. The philosophical criticism was at
times judicial, political, and academic.iii These criticisms were forged as a
response to the inflexible monolithic structures to which I have referred.
As the post World War II boom laid the economic basis for the development
As the post World War II boom laid the economic basis for the development
of the modern welfare state however the philosophical and political arguments
against the role of common law in compensating for industrial injury grew.
This was the time of full employment and rising living standards.
Inexorably, the welfare state would ensure that the basic needs of all citizens would
be satisfied. Importantly, if you were injured at work, it was the broader
community who should guarantee your compensation. After all it was
they who benefited from your labour in the increasingly complex and
they who benefited from your labour in the increasingly complex and
interdependent society and economy which was emerging. In particular
in the 1960’s and 70’s there was increasing criticism of the role of common
law in compensating for industrial injury.
The traditional philosophical opposition to the role common law believes
that often the compensation payable bears no relation to the degree of fault,
or no relation to the means of the defendant. It is claimed that the fault principle
is not in reality a ‘moral’ principle because a defendant can be negligent without
being morally culpable, and that the fault principle pays insufficient attention to
the conduct or needs of the plaintiff. It is also suggested that once and for all
lump sum awards are crude and inadequate methods of awarding compensation,
that the legal process can have a deleterious effect on rehabilitation, and that
transaction costs are too high. Payment of compensation on the basis of fault
was seen as socially regressive. It was seen as compensation for evidence, not injury.
In 1994 the Industry Commissioniv summarised the rationale of the historical
In 1994 the Industry Commissioniv summarised the rationale of the historical
opposition or ambivalence to common law at that time to include:
• Delays in settlement:- which can have a detrimental effect on the financial
• Delays in settlement:- which can have a detrimental effect on the financial
position of the claimant, may effect incentives for rehabilitation and return to
work, and adds to the complexity of the compensation process
• Incompatibility with rehabilitation and return to work:- where the adversarial
• Incompatibility with rehabilitation and return to work:- where the adversarial
nature of the common law process can threaten the employment relationship,
and the consequences particularly for occupational rehabilitation which
normally commences once the injury has stabilised
• Occupational health and safety incentives:- where it is argued that the existence
• Occupational health and safety incentives:- where it is argued that the existence
of a common law claim may discourage an employer from improving safety at the
workplace (ie the fear of doing so being evidence that the previous practice was
unsafe)
• Common law costs:- including the legal costs of bringing a common law claim,
workplace (ie the fear of doing so being evidence that the previous practice was
unsafe)
• Common law costs:- including the legal costs of bringing a common law claim,
and the size of common law awards
• Lumps sums:- damages are awarded as lump sums and are criticised on the
• Lumps sums:- damages are awarded as lump sums and are criticised on the
basis of over/under compensation, and the potential for ‘dissipation’ of the
compensation award
• Relationship with medical costs:- it is argued that common law legal action
• Relationship with medical costs:- it is argued that common law legal action
can have a significant effect on the size of medical costs ie ‘medico-legals’
• Inconsistency with a no-fault scheme:- a large number of injured workers are
• Inconsistency with a no-fault scheme:- a large number of injured workers are
unable to establish fault liability, therefore should a small proportion of workers
obtain additional compensation because they are able to demonstrate fault
(ie the ‘forensic lottery’)
Support for the role of common law in compensation for industrial injury
Support for the role of common law in compensation for industrial injury
relies amongst other things, on a notion of deterrence; the ability to individually
tailor compensation dependent on an individual’s needs; the ‘flexibility’ of the
common law and its ability to change with the times and community expectations;
a finality to litigation and the claims process; and community support for the
moral imperative that those (employers) who cause injury should pay.
Importantly support within the legal community has concentrated
on a ‘basic legal rights’ concept without more thorough engagement with many
on a ‘basic legal rights’ concept without more thorough engagement with many
of the well founded criticisms of common law. The ‘rights’ based arguments
ignored the very real issues of access, and substandard outcomes particularly
for compensation for on-going medical treatment, long term economic loss,
and the dissipation of damages on system created debts.
The 1994 Industry Commission Reportv summarised the opposing arguments
The 1994 Industry Commission Reportv summarised the opposing arguments
in support of common law as:
• Workers’ rights:- in that it is a basic legal right
• Justice:- where it is argued that the common law accords with the community’s
• Workers’ rights:- in that it is a basic legal right
• Justice:- where it is argued that the common law accords with the community’s
sense of justice
• Damages:- a common law negligence action protects the severely injured
• Damages:- a common law negligence action protects the severely injured
by ensuring individual assessment of their losses rather than payment by reference
to a statutory formula
• Finality:- where there is both a finality for the injured worker and the claim’s agent /
insurer
• Benefit levels:-where it is suggested that the availability of common law may act as an
incentive to maintain the adequacy of statutory benefits
Interestingly, both sides of the traditional debate contend with some vehemence the
opposite is anti-rehabilitative.
Whilst it is true that much of the relatively recent restriction of common law in
• Finality:- where there is both a finality for the injured worker and the claim’s agent /
insurer
• Benefit levels:-where it is suggested that the availability of common law may act as an
incentive to maintain the adequacy of statutory benefits
Interestingly, both sides of the traditional debate contend with some vehemence the
opposite is anti-rehabilitative.
Whilst it is true that much of the relatively recent restriction of common law in
Australia is attributable to conservative governments, it is important to recognise
a strong ambivalence within sections of the ALP, and the trade union movement
to the role of common law. It was the Whitlam government in 1975, on the basis
of the Woodhouse Reportvi, which flirted with the establishment of a national
no-fault compensation scheme with no role for common law entitlements.
In New South Wales in 1987 it was the Unsworth Labor government which
abolished common law entitlements, and which were eventually reintroduced in
a modified form by the Greiner government in 1990. Similarly it was a
federal Labor government which effectively, though not formally, removed
federal Labor government which effectively, though not formally, removed
common law as a part of the Commonwealth Comcare compensation scheme.
Following the Cooney Committee Reportvii in 1984 (and a review of the competing
Following the Cooney Committee Reportvii in 1984 (and a review of the competing
claims concerning the role of common law and a statutory scheme) the Cain
government’s introduction of the Accident Compensation Act in September 1985,
and the commencement of the WorkCare scheme, saw the first model of a
blended compensation system. Admittedly this was somewhat serendipitous,
relying on a finely balanced political situation at the time, as I have no doubt
that the Cain government subscribed to the traditional ambivalence to common
law outlined above. It should be noted that the model allowed common law
compensation for pain and suffering only (economic loss addressed
in the improvements to weekly payments compensation), and medical expenses
in the improvements to weekly payments compensation), and medical expenses
were also separately guaranteed, thereby addressing two of the most trenchant
criticisms of common law. From then it is perhaps fair to say that those involved
in the common law debate in Victoria settled for an uneasy truce whereby both
methods of compensation played a role, in which access to common law
entitlements has generally been restricted or circumscribed, with the
emphasis placed on no-fault statutory benefits.
Why Were Common Law Claims Abolished in Victoria?
The issue of workers’ compensation is one of the most transparent intersections of the
interests of capital and labor in the political process. It therefore often assumes symbolic
importance when there is a change in the fortunes of capital or labor, and the political
parties which claim either as their heartland or natural constituency, gain office. The
reform of the compensation system presents a new government with an opportunity to
demonstrate a tangible commitment to its power base and historically, new governments
have been quick to usher in change in workers’ compensation laws. Over the last two
decades all Victorian governments have implemented change early in their first period of
office.
1992 – 1997 WorkCover Changes
From 1992 and leading up to the abolishment of common law in 1997 some of the major
Kennett government changes inlcuded:
• A requirment that employment be a significant contributing factor
• The exclusion of some categories of stress claims
• The exclusion of injuries which occur on the way to or from work
• The introduction of the concept of notional earnings which is the amount actually
earned or the amount that WorkCover believes a worker could be earning in suitable
employment even if no such job exists
• The introduction of the concept of serious injury
• Significant changes to the weekly payments structure
• Termination of payment of routine or non-essential medical expenses 12 months after
weekly payments cease
• Employer control of injured workers access to rehabilitation services
• Removal of ‘mental disorder’ as a basis for lump sum compensation
• Abolishing the specialist Accident Compensation Tribunal (including sacking the
Judges), and abolishing the WorkCare Complaints Commissioner
• Introducing impairment thresholds for hearing loss compensation
• Increasing the role and power of Medical Panels including redefining medical questions
to include questions of fact and removing judicial review of decisions
Whilst the government reintroduced rights to claim pecuniary damages in 1992, it
introduced the threshold requirement of ‘serious injury’ by way of 30% whole person
impairment based on AMA Guides, or satisfaction of a ‘narrative’ test for access to
common law, and placed monetary thresholds on both heads of damages. A particular aim
being to discourage common law claims for small monetary amounts. Between 1992 and
1997 the government further tightened access to common law entitlements by removing
secondary psychological injury from the assessment of impairment, and the imposition of
cost penalties including requiring the plaintiff to pay her/his own costs if damages were
assessed but could not be awarded. The Kennett government also sought to substantially
reduce the various statutory entitlements including weekly payments, and lump sum
compensation for permanent impairment. Accordingly the abolition of common law rights
in 1997 can be seen as a continuation of the Kennett governments determination to
restrict access to, and the benefits available under, the WorkCover scheme. It should be
noted however that following the majority of changes carried out in 1992 the WorkCover
scheme had settled into a relatively stable scheme.
Up until November 1997 there had been a limited assault on common law, primarily
tightening access. The fact that the Kennett government moved to abolish common law
rights after five years in office was curious.
Partly the answer lies in the process of change begun in 1992 and carried out up until
1997. But the major reason I suggest, lies in a confluence of factors merging in late 1997
that provided the political impetus to abolish common law
In my view the Kennett government changes in 1997 were driven by a confluence of at
least three factors, namely:
• a desire for a significant levy reduction couched in the economic rhetoric of employer
associations (who portrayed WorkCover premiums as an impost on profitability and
jobs), and support for this within government
• the remnants of support for the 1960’s & 1970’s philosophical opposition to common
law genuinely held by senior policy makers within Treasury and the VWA and shared
by some sections of the labour movement
• and the chronic inability of the Victorian WorkCover Authority to in particular manage
the existing common law claim process.
The Economic Rhetoric
Employers groups and associations vigorously pursued the line that workers’
compensation premiums were a crucial component of the economic viability of the state. I
am sure that you have experienced the same arguments here. Without a shred of
objective evidence every percentage point up or down in premium rates is claimed to
represent thousands of jobs lost or gained to other states. Also, common law was
portrayed as anti-rehabilitative, as it, rather than the fact of negligent caused injury, was
seen as the destroyer of the employment relationship.
Clearly the employer groups’ eyes were firmly fixed on a levy reduction. It is interesting to contrast the position of twenty five of the twenty six self-insurers in Victoria at this time who opposed the abolition of common law. They were large corporations employing substantial numbers of Victorians who were just as interested in the issue of business costs, but as self-insurers would have no benefit from a levy reduction. I would suggest that their support for the retention of common law was not an act of altruism per se, but more a recognition that access to common law was an important component of the compensation ‘tools’ necessary to effectively manage their industrial injury portfolios. As well the self-insurers found no impediment in common law to effective rehabilitation.
The Kennett government threw their support behind the employer association claims with
a crude and essentially dishonest use of financial statistics. In October 1997, shortly
before abolishing common law rights for seriously injured Victorian workers the then
Minister for Finance (and responsible for the WorkCover scheme), Roger Hallam, issued a
press release which provided reasons for the abolition of common law that essentially
relied on financial issues, and notions of "more equitable and fairer" treatment for injured
workers. It was claimed that WorkCover common law payments had increased from $17.9
million in 1995/96 to $139.7 million in 1996/97.
Hallam claimed that common law claims constituted 20% of WorkCovers liabilities, yet less than 3% of injured workers received common law settlements. He also claimed that lawyers were receiving $100 million a year from WorkCover and that this money would be better off going to injured workers.
Given the continual changes to the compensation scheme since 1985, and in particular
those applying to the operation of common law, it has been almost impossible to gather
sound and objectively based statistical information, which can be used in any meaningful
way to inform policy choice. Not only are there ‘lies, damn lies, and (WorkCover)
statistics’, but Hallam’s use of them in this way represented an attempt by the Kennett
government to portray criticism as merely an esoteric debate between the government and
‘greedy lawyers’ about money, not principle. The figures utilised by the government drew
on an artificial hump of claims created by its own amendments in 1992, and then plotted a
the growth of claims from a zero base in 1992! What was a natural and expected
statistical phenomenon was portrayed as an alarming and uncontrolled exponential growth
in these claims. Abolition of common law was portrayed as cost neutral and the proposal
as merely removing money from the pockets of lawyers to return to injured workers.
Kennett & the ‘Historic Ambivalence’
In my view Kennett, as the consumate political animal, sensed some ambivalence to
common law in sections of the trade union movement and the ALP. His judgment about
such ambivalence was not misplaced. I recall a conversation in mid-1997 with a senior
member of the then state ALP opposition (and now senior cabinet member of the current
government). The Kennett government was in the process of laying the political
groundwork for the abolition of common law in November 1997. Labour lawyers were
encouraging debate about the issue in the broader labour movement. In the discussion I
raised concerns about the impending abolition of common law only to be told that there
"were no votes in WorkCover"!. Thereafter I, amongst others resolved to ensure that there
were votes in WorkCover. Of course this was largely achieved by a well orchestrated
campaign conducted by plaintiff law firms, the trade union movement, legal bodies, injured
workers, and other groups which was comprehended and supported by the wider
community.
In 1997 Kennett sought to exploit the ambivalence of some sections of the labour
movement to argue that notion of ‘fault’ based compensation could finally be put to the
sword, and replaced with the protective shield of fair and equitable statutory lump sum
compensation for permanent impairment together with other entitlements. In this I suggest
he was supported by well intentioned senior policy makers within the bureaucracy who
were convinced of the need to remove the vagaries of common law from the
compensation system following the critique developed during the expansion of the welfare
state.
Crises of VWA Management
The above factors merged with the now well documented inability of the WorkCover
Authority to manage common law damages claims. These included an inflexible approach
to the management of claims; the exclusion of skilled insurance staff and their conversion
to mere ‘post boxes’ for claims; lack of integration between common law and the
rehabilitation and compensation process generally; inconsistency of approach to serious
injury applications and common law claims owing to a high level reliance on a relatively
large number of defendant panel law firms; and the ‘infamous’ barristers strike in late 1997
when the VWA arbitrarily reduced fees.viii In fact I would go as far as to say that at a senior
level VWA management used the other factors to deflect justified criticism of their
incompetence. In so doing the Victorian WorkCover Authority skillfully manipulated a
government back-bench committee which met in secret to consider the issue, and found a
willing ally in a particularly ambitious back-bench member of the government. As often at
decisive historical moments, individuals can play a key role, and the debate in late 1997
about abolition of common law was no exception. With the Kennett cabinet ambivalence
about the issue, particularly in the face of minor but escalating public opposition, the then
CEO of the VWA returned from overseas to stiffen the ‘resolve’ of his Minister. The die
was cast, and the legislation passed.
Why Was Common Law Reintroduced?
In my view in 1997 the Kennett government committed three fatal misjudgments. Firstly,
those involved in the political process failed to comprehend the ability of the existence of
common law damages to deflect community focus on the inadequacy of statutory benefits.
The second misjudgment, intimately connected with the first, involved a gross
miscalculation as to the nature and saleability of the "improved" impairment benefits
scheme that accompanied the abolition of common law damages. Finally, the decision to
also totally abolish rights against a third party was astounding and was readily
comprehended as such by the community.
The impairment benefit scheme enshrined in s98C and s98E of the Accident
Compensation Act relied on the component of impairment benefits on a whole person
basis substantially assessed under the American Medical Association Guidelines for The
Evaluation of Permanent Impairment (4th Edition). Whilst the government and the
Victorian WorkCover Authority then contended, and probably genuinely believed, that the
impairment benefits scheme was a dramatic improvement in the position of injured
workers, the reality was different. The transfer to the AMA 4th Edition Guides and the
imposition of a 10% threshold meant that the new impairment scheme represented a
dramatic reduction in impairment payments alone, not taking account of the loss of general
damages at common law.
This flaw was quickly comprehended by some stakeholders, particularly trade unions and
plaintiff lawyers, and quickly became the subject of "before and after" advertising by the
Australian Plaintiff Lawyers Association. Despite hasty readjustment of the 1997
legislative package both the government, and extraordinary advertising by the VWA, they
were unable to regain the momentum in the public debate. The momentum was translated
into a well-funded coalition of trade unions, plaintiff lawyers, injured workers and other
community groups that developed a sophisticated campaign strategy focussing in
particular on the ‘human face & story’ of those seriously injured workers whose benefits
and entitlements were being reduced.
An analysis of the VWA’s projections of the cost of the "improved" impairment benefits
under s98C and s98E in the most recent review has demonstrated the Authority’s costing
to be greatly miscalculated. In the Review conducted by the WorkCover Advisory
Committee in 1999/2000 material, particularly comparative studies, undertaken by the
medical panel and a study of Slater & Gordon cases demonstrated that significant lower
payment was made under s98C than its predecessor.ix These studies together with other
material provoked a market revision of actuarial estimates of the projected costs of s98C
claims.x
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment associated with a
work injury No right to pursue damages claims in traffic accidents where the purpose of travel was ‘arising out of or in the course of employment’ Emergency workers such as police were also denied damages claims against ‘third party’offenders who caused injury
ABS statistics also revealed that over 66,000 small business in Victoria employing less
than five employees operated as companies. These were primarily small family concerns
and the abolition of third party rights meant that directors could not make a common law
because they were deemed workers under the provisions of the Accident Compensation
Act. Notwithstanding the above the government was of the view that it could ‘tough out’
public opposition until the next election. This was possibly correct save for the surprise
resignation of a disgruntled colleague of Kennett which resulted in the Mitcham by-election
in March 1998. It is now a matter of record that along with changes to the role of the
Auditor General, the other major issue fought over during the by-election was the abolition
of common law rights.
The stunning result in the Mitcham by-election in March 1998 was a demonstration of how
successful this campaign was to be. Polling carried out at the time identified the
November 1997 WorkCover changes, including the abolition of common law, to be a
decisive issue in the unprecedented swing against the Kennett government. In fact, a poll
carried out by Roy Morgon Research in late October 1997 revealed that four in five
Victorians surveyed knew of the government proposals, and without requiring any extra
information on the issue, 79% expressed their disapproval!.
From 1997 through to the state election in September 1999 the campaign was extremely
well co-ordinated under the umbrella of the ‘Injured Persons Association’. Marginal seats
were targetted where every household received literature explaining the issues.
Advertising was carried out in the print and electronic media. In particular the campaign
used emergency services workers as a potent example of what was at stake. These
workers served the community, often exposed to great risk, yet potentially not being
adequately compensated for injury as a result of the changes. Well collated case studies
were used to demonstrate the reduction in entitlements and benefits injured workers would
suffer as a result of the changes.
It was in the process of this developing campaign that I believe an important and
necessary step was taken. That was to examine, and challenge, the economic
assumptions which had been made by employer associations to justify reductions in
premiums. At issue here was a debate concerning who actually pays for the costs of
workers’ compensation. Traditionally it is asserted that it is the corporate sector which
bears the major costs, and therefore lower premiums (and by definition lower benefits) are
necessary for reasons of business confidence and competitiveness. By engaging in this
debate we were able to refer to respectable academic evidence to demonstrate that it is
employees who actually fund the compensation scheme insurance levies via lower real
wages. The conventional position maintains that the increase in workers’ compensation
premium constitutes an added cost to the cost of employment as part of real labour costs
that inevitably leads to reduced employment.
These views, generally contended by industry associations, found a large measure of support within the Department of Treasury and Finance. The contrary view based on economic research in the United States conducted by Chelius and Viscusi supports the proposition that "the pursuit of lower premiums through reduced benefits and restricted eligibility provides little or no long term benefit to business since the labour market adjusts to yield higher take home wages at
unchanged labour costs to the firm".xi
Plaintiff lawyers commissioned Marsden Jacob Associates to apply similar research
techniques to the Australian labour market, and examine who pays for workplace
accidents and insurance compensation levies. In summary their research revealed that:
• over 80% of the cost of workers’ compensation insurance levies are shifted back to
workers by the operations of the labour market and the action of employers, particularly
via lower take-home pay, and as a result employment costs to employers are only
temporarily changed by a change in the insurance levy
• employers actually pay for less than 10% of the total costs to the Australian economy of
workplace accidents and injury
The ‘New’ Common Law
The amendments to the Accident Compensation Act are a marked improvement for injured
Victorians. It nonetheless constitutes a remarkably modest reform by an unduly timid
government and reflects the still unresolved philosophical debates that I have mentioned.
There is no doubt that the issue of the removal of common law damages was a significant
issue in the 1999 general election which continued to resonate in the subsequent
Frankston East, Burwood, and Benalla by-elections. It is regrettable, given the
prominence of the issue, that the Victorian government did not take the opportunity to
deliver more meaningful benefits to its constituency through a marginal extension of the
levy from 2.18% to 2.25% of payroll. This extension would have allowed both a
meaningful substituted common law payment to be made to workers seriously injured
between the 12th November 1997 and the 19th October 1999, and the government to
urgently address the substandard benefits that remain, particularly in s98C and s98E of
the Accident Compensation Act.xii
Legislation reintroduced the ability for a group of specific workers to pursue a claim for
common law damages against their employer or third party. The reform is not fully
retrospective and only applies to injuries occurring on or after the 20th October 1999. The
formal justification for failing to date the reforms back to the 12th November 1997 was the
general philosophical opposition to the use of retrospective legislation. Whilst I
understand the reluctance of governments to utilise retrospective legislation I contend that
there is a qualitative difference between legislation removing rights and legislation
restoring those rights. The Bracks government, in my view, made the decision not to
restore the rights retrospectively firstly, on an economic basis, ie its commitment to keep
the premium level within 2.18% of wages, and secondly, on the political judgment that the
odium that would come from its failure to restore rights would be borne by the Liberal and
National parties.
Whatever the justification, the failure to introduce fully retrospective legislation is a tragic
abandonment of those workers who are injured within the window period.
Common Law Threshold
In the final analysis the government elected for a model that utilises the impairment
assessment as the primary gateway to common law but also allowing access through a
narrative test which will vary depending on whether the worker’s claim is confined to a
claim for non pecuniary loss or whether it seeks to encompass pecuniary loss as well.xiii
The impairment assessment test to be utilised for access to common law damages is to be
based on the fourth edition of the AMA Guides (the ‘Guides’). You will appreciate that
between 1992 and 1997 the impairment assessment test was based on the second edition
of the Guides. In reality few persons injured during that period sought access to common
law damages through the impairment assessment method and rather elected to seek
access through the narrative. Under the amendments it is clear there will be a much
greater focus on the impairment assessment for the purpose of common law damages. It
is to be the primary source of an application for serious injury with resort to the narrative
only being possible after the assessment of permanent impairment.xiv The move from the
second edition to the fourth edition of the Guides is expected to have very marked effects
on the number of persons who will be able to achieve access to common law through the
impairment gateway. In particular there are very marked differences in the ratings
achieved under AMA 4 and AMA 2, particularly in respect of muscular-skeletal and
respiratory injuries.xv
The narrative test to be applied in assessing certification for serious injury for injuries
occurring on or after the 20th October 1999 has a marked similarity to the narrative test
that was in place for injuries prior to the 12th November 1997. S.134AB(37) of the Bill
defines serious injury as follows:
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
d) loss of a foetus.
Perhaps the most marked changes that have been affected related to an application for
serious injury based on a "loss of earning capacity". It was generally recognised that in
respect of injuries prior to the 12th November 1997 a loss of earning capacity was one of
the major factors that influenced courts in its assessment of whether an injury constituted
the serious injury within the meaning of s135A of the Act. A moderate earning loss when
projected over a workers’ potential working life was generally considered to be of serious
consequence for an injured worker thus justifying the granting of a serious injury
certificate. The new provisions seek to ensure that an actual loss of a defined extent can
only be taken into account in the establishing of a loss of earning capacity for the purposes
of serious injury certification. Subsection 134AB(38)(e)(i) & (ii) will require a worker to
have a loss of earning capacity of at least 40% as at date of serious injury certification and
that the injury will be productive of a financial loss of 40% or more permanently into the
future.
It must be recognised that if there is a significant trend to pursue claims for damages in
respect of non-pecuniary loss only this will inevitably raise major prudential issues for the
Victorian WorkCover Authority. If there is no award for pecuniary loss then the WorkCover
Authority does not receive the benefit of the redemptive effect of a common law damages
claim as the worker will continue to receive entitlement to weekly payment of
compensation in accordance with the Act.
Third Party Claims – The New Common Law Position
The new common law position in respect of third party claims in the legislation is, I think,
indicative of the "hothouse" effect of the preparation of the legislative amendments. The
Kennett government abolition for claims of common law damages were comprehensive
and resulted not only in the abolition of common law claims in the workplace but also
common law claims in circumstances where a third party was a tort feasor but the injury
occurred in the course of employment not away from the place of employment. It was not
widely comprehended, for example, that the owner and director of a family company,
perhaps working as a plumber, was not entitled to bring a claim in respect of a transport
accident which occurred as a result of driving in the course of their employment. Similarly
a worker injured as a result of medical malpractice was not able to sue a negligent medical
treater if the treatment related to a workplace injury. The legislation now restores the right
of workers injured in third party circumstances to pursue a claim for common law
damages.
The more curious situation arises in respect of damages claims against third parties in
other circumstances where the injury occurs away from the fixed place of employment.
S134AA(b) of the Bill extends a right to a worker to bring proceedings for common law
damages in specific circumstances without the need to meet a threshold requirement of
serious injury. Those circumstances are set out in the section but are limited to
circumstances where an employer is not a party to the proceedings and where the injury is
by virtue of s83(1) of the Act deemed to have arisen out of or in the course of employment
and if the workers’ place of employment is a fixed place of employment the injury did not
occur while the worker was present at that fixed place of employment. It is clear that at
the time of the amendment of the Act the government had not fully considered the
potential implications of the serious injury threshold in third party claims and thus opted to
reintroduce the provision that was contained in the Act between 1985 and 1992.xvi In
doing so the government failed to appreciate that there were no serious injury thresholds
in the Act at that time and all claims for damages were limited to claims for pecuniary loss.
We are now in the peculiar position that those workers injured in deemed employment
circumstances ie., lunch breaks or other breaks away from a place of employment,
medical treatment or attending trade schools are not bound by the serious injury
thresholds, whilst all others injured in the course of employment but away from their place
of employment are so bound. This situation is best illustrated by example. If say a worker
were injured in a shopping centre during the course of an authorised lunch break they
would have the same rights as any member of the community to bring proceedings against
the shopping centre for the negligence resulting in the injury. If the worker however had
been sent to purchase his or her employers lunch and thus was present in the course of
their employment, rather than in the course of deemed employment, they are so bound by
the thresholds. No doubt that these anomalies, together with the anomalies that would
centre on whether or not a worker has a fixed place of employment will necessitate the
further amendment of the Act.
Conclusion
What then are the lessons that we can draw from the Victorian experience?
The first lesson is to recognise the need to develop a new theory of relevance for common
law claims in modern and complex compensations systems. Initially we must
acknowledge that many of the traditional criticisms of the common law have been valid.
We cannot ignore issues such as delay, high transaction costs, or other defects, as these
have the tendency to ultimately render a system unstainable. It must be recognised that
everybody has an interest in the stability and sustainability of a system. In the past the
major criticism of common law claims for damages was that they were a poor distributive
mechanism. Under modern compensation schemes I contend it is arguable that they are
a sophisticated distributive mechanism. When a common law claim is a component of a
blended compensation scheme it actually has the potential to be a well focused distributive
mechanism that provides an extra layer of compensation to the most seriously injured in
the most reprehensible circumstances. In so doing it has the potential to meet community
expectations and to promote the deterrent effect inherent in the remedy. The debate
should therefore no longer be focused on a no fault compensation scheme versus
common law, but rather on developing the appropriate control mechanisms for access to
common law. Proper control mechanisms will be equitable and predictable. The role of
common law in modern blended compensation systems must be accompanied by
commitment to the reduction of transaction costs for the remedy, and flexible recipes for
the claiming of damages. Generally, the right to continue in medical treatment should be
excluded from a claim for damages, and continue irrespective of a claim. Flexible choices
between damages on economic and non-economic loss will also be an essential
ingredient of a relevant common law damages system.
It will be essential for plaintiff and labour lawyers, and other interested groups, to develop
and promote economic theories that support the role of common law in order to meet
head-on the uncritical rhetoric of employer groups about the dis-incentives to employment.
These new economic theories will address issues such as those raised by Chelsius and
Viscusi and focus on the irrational subsides provided to injurious employers through
depressed levy payments. These theories must also research and document the deterrent
capacity of the common law remedy in occupational injuries.
The next lesson that has been learnt well in Victoria is the interest of all stakeholders in a
sustainable common law damages scheme. I think there is a realisation among plaintiff
lawyers, trade unions, and others, that a compensation scheme has to have financial
integrity and that adjustments to the control mechanisms of a scheme will be necessary
from time to time. The reintroduction of common law in Victoria has a degree of fragility
and it is possible that some strain will be imposed on the control mechanisms in future
years. This may be avoided by the imposition of a very strict management structure
derived from the TAC, but time will tell.
The final point I want to make is that we have learned from Victoria that it is possible to
develop a tangible political campaign around the issue of "common law". The Victorian
experience has shown that it is possible to take this issue and convert it in to an issue of
real importance to the community. To do so however, requires dedication and co-operation
amongst all relevant interest groups. The lesson we learnt from Victoria was that the most
compelling political method was to focus on the "worthy excluded".
Why Were Common Law Claims Abolished in Victoria?
The issue of workers’ compensation is one of the most transparent intersections of the
interests of capital and labor in the political process. It therefore often assumes symbolic
importance when there is a change in the fortunes of capital or labor, and the political
parties which claim either as their heartland or natural constituency, gain office. The
reform of the compensation system presents a new government with an opportunity to
demonstrate a tangible commitment to its power base and historically, new governments
have been quick to usher in change in workers’ compensation laws. Over the last two
decades all Victorian governments have implemented change early in their first period of
office.
1992 – 1997 WorkCover Changes
From 1992 and leading up to the abolishment of common law in 1997 some of the major
Kennett government changes inlcuded:
• A requirment that employment be a significant contributing factor
• The exclusion of some categories of stress claims
• The exclusion of injuries which occur on the way to or from work
• The introduction of the concept of notional earnings which is the amount actually
earned or the amount that WorkCover believes a worker could be earning in suitable
employment even if no such job exists
• The introduction of the concept of serious injury
• Significant changes to the weekly payments structure
• Termination of payment of routine or non-essential medical expenses 12 months after
weekly payments cease
• Employer control of injured workers access to rehabilitation services
• Removal of ‘mental disorder’ as a basis for lump sum compensation
• Abolishing the specialist Accident Compensation Tribunal (including sacking the
Judges), and abolishing the WorkCare Complaints Commissioner
• Introducing impairment thresholds for hearing loss compensation
• Increasing the role and power of Medical Panels including redefining medical questions
to include questions of fact and removing judicial review of decisions
Whilst the government reintroduced rights to claim pecuniary damages in 1992, it
introduced the threshold requirement of ‘serious injury’ by way of 30% whole person
impairment based on AMA Guides, or satisfaction of a ‘narrative’ test for access to
common law, and placed monetary thresholds on both heads of damages. A particular aim
being to discourage common law claims for small monetary amounts. Between 1992 and
1997 the government further tightened access to common law entitlements by removing
secondary psychological injury from the assessment of impairment, and the imposition of
cost penalties including requiring the plaintiff to pay her/his own costs if damages were
assessed but could not be awarded. The Kennett government also sought to substantially
reduce the various statutory entitlements including weekly payments, and lump sum
compensation for permanent impairment. Accordingly the abolition of common law rights
in 1997 can be seen as a continuation of the Kennett governments determination to
restrict access to, and the benefits available under, the WorkCover scheme. It should be
noted however that following the majority of changes carried out in 1992 the WorkCover
scheme had settled into a relatively stable scheme.
Up until November 1997 there had been a limited assault on common law, primarily
tightening access. The fact that the Kennett government moved to abolish common law
rights after five years in office was curious.
Partly the answer lies in the process of change begun in 1992 and carried out up until
1997. But the major reason I suggest, lies in a confluence of factors merging in late 1997
that provided the political impetus to abolish common law
In my view the Kennett government changes in 1997 were driven by a confluence of at
least three factors, namely:
• a desire for a significant levy reduction couched in the economic rhetoric of employer
associations (who portrayed WorkCover premiums as an impost on profitability and
jobs), and support for this within government
• the remnants of support for the 1960’s & 1970’s philosophical opposition to common
law genuinely held by senior policy makers within Treasury and the VWA and shared
by some sections of the labour movement
• and the chronic inability of the Victorian WorkCover Authority to in particular manage
the existing common law claim process.
The Economic Rhetoric
Employers groups and associations vigorously pursued the line that workers’
compensation premiums were a crucial component of the economic viability of the state. I
am sure that you have experienced the same arguments here. Without a shred of
objective evidence every percentage point up or down in premium rates is claimed to
represent thousands of jobs lost or gained to other states. Also, common law was
portrayed as anti-rehabilitative, as it, rather than the fact of negligent caused injury, was
seen as the destroyer of the employment relationship.
Clearly the employer groups’ eyes were firmly fixed on a levy reduction. It is interesting to contrast the position of twenty five of the twenty six self-insurers in Victoria at this time who opposed the abolition of common law. They were large corporations employing substantial numbers of Victorians who were just as interested in the issue of business costs, but as self-insurers would have no benefit from a levy reduction. I would suggest that their support for the retention of common law was not an act of altruism per se, but more a recognition that access to common law was an important component of the compensation ‘tools’ necessary to effectively manage their industrial injury portfolios. As well the self-insurers found no impediment in common law to effective rehabilitation.
The Kennett government threw their support behind the employer association claims with
a crude and essentially dishonest use of financial statistics. In October 1997, shortly
before abolishing common law rights for seriously injured Victorian workers the then
Minister for Finance (and responsible for the WorkCover scheme), Roger Hallam, issued a
press release which provided reasons for the abolition of common law that essentially
relied on financial issues, and notions of "more equitable and fairer" treatment for injured
workers. It was claimed that WorkCover common law payments had increased from $17.9
million in 1995/96 to $139.7 million in 1996/97.
Hallam claimed that common law claims constituted 20% of WorkCovers liabilities, yet less than 3% of injured workers received common law settlements. He also claimed that lawyers were receiving $100 million a year from WorkCover and that this money would be better off going to injured workers.
Given the continual changes to the compensation scheme since 1985, and in particular
those applying to the operation of common law, it has been almost impossible to gather
sound and objectively based statistical information, which can be used in any meaningful
way to inform policy choice. Not only are there ‘lies, damn lies, and (WorkCover)
statistics’, but Hallam’s use of them in this way represented an attempt by the Kennett
government to portray criticism as merely an esoteric debate between the government and
‘greedy lawyers’ about money, not principle. The figures utilised by the government drew
on an artificial hump of claims created by its own amendments in 1992, and then plotted a
the growth of claims from a zero base in 1992! What was a natural and expected
statistical phenomenon was portrayed as an alarming and uncontrolled exponential growth
in these claims. Abolition of common law was portrayed as cost neutral and the proposal
as merely removing money from the pockets of lawyers to return to injured workers.
Kennett & the ‘Historic Ambivalence’
In my view Kennett, as the consumate political animal, sensed some ambivalence to
common law in sections of the trade union movement and the ALP. His judgment about
such ambivalence was not misplaced. I recall a conversation in mid-1997 with a senior
member of the then state ALP opposition (and now senior cabinet member of the current
government). The Kennett government was in the process of laying the political
groundwork for the abolition of common law in November 1997. Labour lawyers were
encouraging debate about the issue in the broader labour movement. In the discussion I
raised concerns about the impending abolition of common law only to be told that there
"were no votes in WorkCover"!. Thereafter I, amongst others resolved to ensure that there
were votes in WorkCover. Of course this was largely achieved by a well orchestrated
campaign conducted by plaintiff law firms, the trade union movement, legal bodies, injured
workers, and other groups which was comprehended and supported by the wider
community.
In 1997 Kennett sought to exploit the ambivalence of some sections of the labour
movement to argue that notion of ‘fault’ based compensation could finally be put to the
sword, and replaced with the protective shield of fair and equitable statutory lump sum
compensation for permanent impairment together with other entitlements. In this I suggest
he was supported by well intentioned senior policy makers within the bureaucracy who
were convinced of the need to remove the vagaries of common law from the
compensation system following the critique developed during the expansion of the welfare
state.
Crises of VWA Management
The above factors merged with the now well documented inability of the WorkCover
Authority to manage common law damages claims. These included an inflexible approach
to the management of claims; the exclusion of skilled insurance staff and their conversion
to mere ‘post boxes’ for claims; lack of integration between common law and the
rehabilitation and compensation process generally; inconsistency of approach to serious
injury applications and common law claims owing to a high level reliance on a relatively
large number of defendant panel law firms; and the ‘infamous’ barristers strike in late 1997
when the VWA arbitrarily reduced fees.viii In fact I would go as far as to say that at a senior
level VWA management used the other factors to deflect justified criticism of their
incompetence. In so doing the Victorian WorkCover Authority skillfully manipulated a
government back-bench committee which met in secret to consider the issue, and found a
willing ally in a particularly ambitious back-bench member of the government. As often at
decisive historical moments, individuals can play a key role, and the debate in late 1997
about abolition of common law was no exception. With the Kennett cabinet ambivalence
about the issue, particularly in the face of minor but escalating public opposition, the then
CEO of the VWA returned from overseas to stiffen the ‘resolve’ of his Minister. The die
was cast, and the legislation passed.
Why Was Common Law Reintroduced?
In my view in 1997 the Kennett government committed three fatal misjudgments. Firstly,
those involved in the political process failed to comprehend the ability of the existence of
common law damages to deflect community focus on the inadequacy of statutory benefits.
The second misjudgment, intimately connected with the first, involved a gross
miscalculation as to the nature and saleability of the "improved" impairment benefits
scheme that accompanied the abolition of common law damages. Finally, the decision to
also totally abolish rights against a third party was astounding and was readily
comprehended as such by the community.
The impairment benefit scheme enshrined in s98C and s98E of the Accident
Compensation Act relied on the component of impairment benefits on a whole person
basis substantially assessed under the American Medical Association Guidelines for The
Evaluation of Permanent Impairment (4th Edition). Whilst the government and the
Victorian WorkCover Authority then contended, and probably genuinely believed, that the
impairment benefits scheme was a dramatic improvement in the position of injured
workers, the reality was different. The transfer to the AMA 4th Edition Guides and the
imposition of a 10% threshold meant that the new impairment scheme represented a
dramatic reduction in impairment payments alone, not taking account of the loss of general
damages at common law.
This flaw was quickly comprehended by some stakeholders, particularly trade unions and
plaintiff lawyers, and quickly became the subject of "before and after" advertising by the
Australian Plaintiff Lawyers Association. Despite hasty readjustment of the 1997
legislative package both the government, and extraordinary advertising by the VWA, they
were unable to regain the momentum in the public debate. The momentum was translated
into a well-funded coalition of trade unions, plaintiff lawyers, injured workers and other
community groups that developed a sophisticated campaign strategy focussing in
particular on the ‘human face & story’ of those seriously injured workers whose benefits
and entitlements were being reduced.
An analysis of the VWA’s projections of the cost of the "improved" impairment benefits
under s98C and s98E in the most recent review has demonstrated the Authority’s costing
to be greatly miscalculated. In the Review conducted by the WorkCover Advisory
Committee in 1999/2000 material, particularly comparative studies, undertaken by the
medical panel and a study of Slater & Gordon cases demonstrated that significant lower
payment was made under s98C than its predecessor.ix These studies together with other
material provoked a market revision of actuarial estimates of the projected costs of s98C
claims.x
The abolition of third party rights was absolute and included:
Abolition of rights in cases of medical negligence arising from treatment associated with a
work injury No right to pursue damages claims in traffic accidents where the purpose of travel was ‘arising out of or in the course of employment’ Emergency workers such as police were also denied damages claims against ‘third party’offenders who caused injury
ABS statistics also revealed that over 66,000 small business in Victoria employing less
than five employees operated as companies. These were primarily small family concerns
and the abolition of third party rights meant that directors could not make a common law
because they were deemed workers under the provisions of the Accident Compensation
Act. Notwithstanding the above the government was of the view that it could ‘tough out’
public opposition until the next election. This was possibly correct save for the surprise
resignation of a disgruntled colleague of Kennett which resulted in the Mitcham by-election
in March 1998. It is now a matter of record that along with changes to the role of the
Auditor General, the other major issue fought over during the by-election was the abolition
of common law rights.
The stunning result in the Mitcham by-election in March 1998 was a demonstration of how
successful this campaign was to be. Polling carried out at the time identified the
November 1997 WorkCover changes, including the abolition of common law, to be a
decisive issue in the unprecedented swing against the Kennett government. In fact, a poll
carried out by Roy Morgon Research in late October 1997 revealed that four in five
Victorians surveyed knew of the government proposals, and without requiring any extra
information on the issue, 79% expressed their disapproval!.
From 1997 through to the state election in September 1999 the campaign was extremely
well co-ordinated under the umbrella of the ‘Injured Persons Association’. Marginal seats
were targetted where every household received literature explaining the issues.
Advertising was carried out in the print and electronic media. In particular the campaign
used emergency services workers as a potent example of what was at stake. These
workers served the community, often exposed to great risk, yet potentially not being
adequately compensated for injury as a result of the changes. Well collated case studies
were used to demonstrate the reduction in entitlements and benefits injured workers would
suffer as a result of the changes.
It was in the process of this developing campaign that I believe an important and
necessary step was taken. That was to examine, and challenge, the economic
assumptions which had been made by employer associations to justify reductions in
premiums. At issue here was a debate concerning who actually pays for the costs of
workers’ compensation. Traditionally it is asserted that it is the corporate sector which
bears the major costs, and therefore lower premiums (and by definition lower benefits) are
necessary for reasons of business confidence and competitiveness. By engaging in this
debate we were able to refer to respectable academic evidence to demonstrate that it is
employees who actually fund the compensation scheme insurance levies via lower real
wages. The conventional position maintains that the increase in workers’ compensation
premium constitutes an added cost to the cost of employment as part of real labour costs
that inevitably leads to reduced employment.
These views, generally contended by industry associations, found a large measure of support within the Department of Treasury and Finance. The contrary view based on economic research in the United States conducted by Chelius and Viscusi supports the proposition that "the pursuit of lower premiums through reduced benefits and restricted eligibility provides little or no long term benefit to business since the labour market adjusts to yield higher take home wages at
unchanged labour costs to the firm".xi
Plaintiff lawyers commissioned Marsden Jacob Associates to apply similar research
techniques to the Australian labour market, and examine who pays for workplace
accidents and insurance compensation levies. In summary their research revealed that:
• over 80% of the cost of workers’ compensation insurance levies are shifted back to
workers by the operations of the labour market and the action of employers, particularly
via lower take-home pay, and as a result employment costs to employers are only
temporarily changed by a change in the insurance levy
• employers actually pay for less than 10% of the total costs to the Australian economy of
workplace accidents and injury
The ‘New’ Common Law
The amendments to the Accident Compensation Act are a marked improvement for injured
Victorians. It nonetheless constitutes a remarkably modest reform by an unduly timid
government and reflects the still unresolved philosophical debates that I have mentioned.
There is no doubt that the issue of the removal of common law damages was a significant
issue in the 1999 general election which continued to resonate in the subsequent
Frankston East, Burwood, and Benalla by-elections. It is regrettable, given the
prominence of the issue, that the Victorian government did not take the opportunity to
deliver more meaningful benefits to its constituency through a marginal extension of the
levy from 2.18% to 2.25% of payroll. This extension would have allowed both a
meaningful substituted common law payment to be made to workers seriously injured
between the 12th November 1997 and the 19th October 1999, and the government to
urgently address the substandard benefits that remain, particularly in s98C and s98E of
the Accident Compensation Act.xii
Legislation reintroduced the ability for a group of specific workers to pursue a claim for
common law damages against their employer or third party. The reform is not fully
retrospective and only applies to injuries occurring on or after the 20th October 1999. The
formal justification for failing to date the reforms back to the 12th November 1997 was the
general philosophical opposition to the use of retrospective legislation. Whilst I
understand the reluctance of governments to utilise retrospective legislation I contend that
there is a qualitative difference between legislation removing rights and legislation
restoring those rights. The Bracks government, in my view, made the decision not to
restore the rights retrospectively firstly, on an economic basis, ie its commitment to keep
the premium level within 2.18% of wages, and secondly, on the political judgment that the
odium that would come from its failure to restore rights would be borne by the Liberal and
National parties.
Whatever the justification, the failure to introduce fully retrospective legislation is a tragic
abandonment of those workers who are injured within the window period.
Common Law Threshold
In the final analysis the government elected for a model that utilises the impairment
assessment as the primary gateway to common law but also allowing access through a
narrative test which will vary depending on whether the worker’s claim is confined to a
claim for non pecuniary loss or whether it seeks to encompass pecuniary loss as well.xiii
The impairment assessment test to be utilised for access to common law damages is to be
based on the fourth edition of the AMA Guides (the ‘Guides’). You will appreciate that
between 1992 and 1997 the impairment assessment test was based on the second edition
of the Guides. In reality few persons injured during that period sought access to common
law damages through the impairment assessment method and rather elected to seek
access through the narrative. Under the amendments it is clear there will be a much
greater focus on the impairment assessment for the purpose of common law damages. It
is to be the primary source of an application for serious injury with resort to the narrative
only being possible after the assessment of permanent impairment.xiv The move from the
second edition to the fourth edition of the Guides is expected to have very marked effects
on the number of persons who will be able to achieve access to common law through the
impairment gateway. In particular there are very marked differences in the ratings
achieved under AMA 4 and AMA 2, particularly in respect of muscular-skeletal and
respiratory injuries.xv
The narrative test to be applied in assessing certification for serious injury for injuries
occurring on or after the 20th October 1999 has a marked similarity to the narrative test
that was in place for injuries prior to the 12th November 1997. S.134AB(37) of the Bill
defines serious injury as follows:
a) permanent serious impairment or loss of a body function; or
b) permanent serious disfigurement; or
c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
d) loss of a foetus.
Perhaps the most marked changes that have been affected related to an application for
serious injury based on a "loss of earning capacity". It was generally recognised that in
respect of injuries prior to the 12th November 1997 a loss of earning capacity was one of
the major factors that influenced courts in its assessment of whether an injury constituted
the serious injury within the meaning of s135A of the Act. A moderate earning loss when
projected over a workers’ potential working life was generally considered to be of serious
consequence for an injured worker thus justifying the granting of a serious injury
certificate. The new provisions seek to ensure that an actual loss of a defined extent can
only be taken into account in the establishing of a loss of earning capacity for the purposes
of serious injury certification. Subsection 134AB(38)(e)(i) & (ii) will require a worker to
have a loss of earning capacity of at least 40% as at date of serious injury certification and
that the injury will be productive of a financial loss of 40% or more permanently into the
future.
It must be recognised that if there is a significant trend to pursue claims for damages in
respect of non-pecuniary loss only this will inevitably raise major prudential issues for the
Victorian WorkCover Authority. If there is no award for pecuniary loss then the WorkCover
Authority does not receive the benefit of the redemptive effect of a common law damages
claim as the worker will continue to receive entitlement to weekly payment of
compensation in accordance with the Act.
Third Party Claims – The New Common Law Position
The new common law position in respect of third party claims in the legislation is, I think,
indicative of the "hothouse" effect of the preparation of the legislative amendments. The
Kennett government abolition for claims of common law damages were comprehensive
and resulted not only in the abolition of common law claims in the workplace but also
common law claims in circumstances where a third party was a tort feasor but the injury
occurred in the course of employment not away from the place of employment. It was not
widely comprehended, for example, that the owner and director of a family company,
perhaps working as a plumber, was not entitled to bring a claim in respect of a transport
accident which occurred as a result of driving in the course of their employment. Similarly
a worker injured as a result of medical malpractice was not able to sue a negligent medical
treater if the treatment related to a workplace injury. The legislation now restores the right
of workers injured in third party circumstances to pursue a claim for common law
damages.
The more curious situation arises in respect of damages claims against third parties in
other circumstances where the injury occurs away from the fixed place of employment.
S134AA(b) of the Bill extends a right to a worker to bring proceedings for common law
damages in specific circumstances without the need to meet a threshold requirement of
serious injury. Those circumstances are set out in the section but are limited to
circumstances where an employer is not a party to the proceedings and where the injury is
by virtue of s83(1) of the Act deemed to have arisen out of or in the course of employment
and if the workers’ place of employment is a fixed place of employment the injury did not
occur while the worker was present at that fixed place of employment. It is clear that at
the time of the amendment of the Act the government had not fully considered the
potential implications of the serious injury threshold in third party claims and thus opted to
reintroduce the provision that was contained in the Act between 1985 and 1992.xvi In
doing so the government failed to appreciate that there were no serious injury thresholds
in the Act at that time and all claims for damages were limited to claims for pecuniary loss.
We are now in the peculiar position that those workers injured in deemed employment
circumstances ie., lunch breaks or other breaks away from a place of employment,
medical treatment or attending trade schools are not bound by the serious injury
thresholds, whilst all others injured in the course of employment but away from their place
of employment are so bound. This situation is best illustrated by example. If say a worker
were injured in a shopping centre during the course of an authorised lunch break they
would have the same rights as any member of the community to bring proceedings against
the shopping centre for the negligence resulting in the injury. If the worker however had
been sent to purchase his or her employers lunch and thus was present in the course of
their employment, rather than in the course of deemed employment, they are so bound by
the thresholds. No doubt that these anomalies, together with the anomalies that would
centre on whether or not a worker has a fixed place of employment will necessitate the
further amendment of the Act.
Conclusion
What then are the lessons that we can draw from the Victorian experience?
The first lesson is to recognise the need to develop a new theory of relevance for common
law claims in modern and complex compensations systems. Initially we must
acknowledge that many of the traditional criticisms of the common law have been valid.
We cannot ignore issues such as delay, high transaction costs, or other defects, as these
have the tendency to ultimately render a system unstainable. It must be recognised that
everybody has an interest in the stability and sustainability of a system. In the past the
major criticism of common law claims for damages was that they were a poor distributive
mechanism. Under modern compensation schemes I contend it is arguable that they are
a sophisticated distributive mechanism. When a common law claim is a component of a
blended compensation scheme it actually has the potential to be a well focused distributive
mechanism that provides an extra layer of compensation to the most seriously injured in
the most reprehensible circumstances. In so doing it has the potential to meet community
expectations and to promote the deterrent effect inherent in the remedy. The debate
should therefore no longer be focused on a no fault compensation scheme versus
common law, but rather on developing the appropriate control mechanisms for access to
common law. Proper control mechanisms will be equitable and predictable. The role of
common law in modern blended compensation systems must be accompanied by
commitment to the reduction of transaction costs for the remedy, and flexible recipes for
the claiming of damages. Generally, the right to continue in medical treatment should be
excluded from a claim for damages, and continue irrespective of a claim. Flexible choices
between damages on economic and non-economic loss will also be an essential
ingredient of a relevant common law damages system.
It will be essential for plaintiff and labour lawyers, and other interested groups, to develop
and promote economic theories that support the role of common law in order to meet
head-on the uncritical rhetoric of employer groups about the dis-incentives to employment.
These new economic theories will address issues such as those raised by Chelsius and
Viscusi and focus on the irrational subsides provided to injurious employers through
depressed levy payments. These theories must also research and document the deterrent
capacity of the common law remedy in occupational injuries.
The next lesson that has been learnt well in Victoria is the interest of all stakeholders in a
sustainable common law damages scheme. I think there is a realisation among plaintiff
lawyers, trade unions, and others, that a compensation scheme has to have financial
integrity and that adjustments to the control mechanisms of a scheme will be necessary
from time to time. The reintroduction of common law in Victoria has a degree of fragility
and it is possible that some strain will be imposed on the control mechanisms in future
years. This may be avoided by the imposition of a very strict management structure
derived from the TAC, but time will tell.
The final point I want to make is that we have learned from Victoria that it is possible to
develop a tangible political campaign around the issue of "common law". The Victorian
experience has shown that it is possible to take this issue and convert it in to an issue of
real importance to the community. To do so however, requires dedication and co-operation
amongst all relevant interest groups. The lesson we learnt from Victoria was that the most
compelling political method was to focus on the "worthy excluded".
i Priestly v Fowler (1837) 3 M&W 1 per Lord Abinger CB; Butterfield v Forrester (1809) East 60; Thomas vQuartermaine (1887) 18 QBD 685
ii Section 135 Accident Compensation Act 1985 (Victoria); Section 45 Safety Rehabilitation & Compensation Act 1988 (Commonwealth)
iii According to Sir John Barry in 1968 "The concepts behind the system and the litigious machinery for applying them, are outmoded in an affluent materialistic and egalitarian society which requires for its functioning mechanised industries and motorised road transport.", Sir John Barry, Tzouvelis v Victorian Railways Commissioners [1968] VR 112 (FC)
iv ‘Workers’ Compensation in Australia’, Industry Commission Report No. 36, February 1994, Australian Government Publishing Services, Canberra Appendix D ‘Legal And Medical Costs’.
v ibid vi ‘National Committee of Inquiry, Compensation and Rehabilitation in Australia’,3 vols, AGPS, Canberra,1974 (the ‘Woodhouse Report’).
vii ‘Report of the Committee of Enquiry into the Victorian Workers Compensation System’, June 1984,Government Printers Melbourne, Victoria.
viii In particular see p 61, Chapter 4 ‘Victorian Common Law Experience 1992 to 1997’, Report Of The Working Party On Restoration Of Access To Common Law Damages For Seriously Injured Workers,February 2000 (‘Working Party Report, February 2000’)
ix The AMA Guides 4th Edition brought a major change to the assessment of back injuries. Previously, back injuries had been assessed under the AMA Guides 2nd Edition. Evidence submitted to the Working Party by the Convenor of Medical Panels (after a review of approximately 86 cases comparing the pre and post November 1997 assessment criteria) indicated that the gross compensation for the group would reduce from
$1.3 million to $80,000. One example was an injured worker with a serious back injury who was erroneously assessed by an insurer under the pre-November 1997 assessment criteria as having a 25% impairment level and entitled to compensation of approximately $35,000. Under the post-November 1997 assessment criteria the same injured worker was assessed at a 5% impairment level and therefore received no compensation. APLA members also provided the Working Party with survey material which demonstrated that significant proportions of injured workers would receive less under the post-November 1997 statutory non-economic loss benefits than they would have received under the table of maims.
x In particular it was the view of plaintiff lawyers and trade union representatives (assisted by their actuarial advisors Cumpston Sarjeant) that the VWA actuaries (Trowbridge) had overestimated the costs of s98C Jump sum compensation because of a poor understanding of the much more stringent impairment assessment criteria under the AMA 4th Edition Guides post November 1997. Especially concerning application to back injuries.
xi ‘Who Really Pays For Worker’ Compensation? Updated Evidence’, Marsden Jacobs Associates, Report for the Law Institute of Victoria, 27 January, 2000.
xii See pp66-68, ‘Working Party Report, February 2000’
xiii Section 134AB (17) of Bill
xiv Section of 134AB (3) of Bill
xv For a discussion of these issues see ‘The Use and Abuse of the American Medical Association Guides in Accident Compensation Schemes’, P. Mulvany & N. Horner, in Journal of Law and Medicine, No.2 Volume 6,November 1998.
xvi see ss135 (1) (b), ‘Accident Compensation Act 1985’ (Act No. 10191/1985, Reprint No. 2)
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