Public Liability

[turboplanner]

Read the article.......

 

I did.

 

 

[spacesailor]

You don't think the Hoards of lawyer,s vetting all bureaucracy,s paper work, is gobbledygook enough !.

 

spacesailor

 

 

[M61A1]

I did.

 

Then you'll have no trouble understanding why legislative drafting is related to this issue.

 

 

[turboplanner]

Then you'll have no trouble understanding why legislative drafting is related to this issue.

 

I notice that neither you nor DenisPC9 have provided any information on how legislative drafting is an issue here.

 

Just to recap on what was said in the Australian story:

 

"There has been an explosion of Class Action claims funded by overseas Litigation Funders."

 

So the issue is Class Actions and the way they are funded, not insurance or the Acts the cases are decided under.

 

The process of a law being made in Australia, let's say to reduce stray dogs, is that general thoughts are put together and The "Stray Dogs Bill 2019" is written up as a draft, and debated in both Houses. If it approved it becomes the Stray Dogs Act 2019.  Legislative drafting, which most here say they hate because they can't understand it, is involved in setting the words for that Bill and Act.

 

There's no suggestion of any fault by any Legislative Drafter in the Australian story.

 

What the story IS about is a spike in Class Actions, and the story actually names the key plaintiff lawyers and defendants.

 

Plaintiff Lawyers:

 

Maurice Blackburn

 

Shine Lawyers

 

Slater & Gordon

 

William Roberts

 

Defendants

 

Westpac

 

Domino's Pizza

 

Bayer Australia

 

Santos

 

Volkswagen Australia

 

Woolworths

 

I didn't take it to imply any wrongdoing by any of these organisations, and we should discuss them; some cases may not be complete.

 

[a group] "have called for the government to address the spike in class action claims in the past two years"

 

It's unlikely the government is going to interfere, or be allowed to interfere in the business of independent Courts.

 

The basis of this is to rein in class action cases "before they damage the economy."

 

This is much the same as where plaintiffs in the past claim they couldn't have avoided the accident because they didn't have enough money to fit the necessary safety equipment, and the Courts have universally rejected that as an excuse.

 

There were "54 Class Action cases last year, the majority backed by overseas litigation funders."

 

The overseas litigation funders appear to be the enemy.

 

Australians are mostly aware of the no win no fee deal in single claims, where if the lawyer loses the case he doesn't charge you a fee, but if he wins the case he gives you a percentage of the payout, and the downside that if he loses the case you will usually be paying the other side's or whatever the contract states. 

 

There have been plenty of comments about greedy lawyers, but in any case, they have no gaurantee they're going to win, and the bigger the case, the more elaborate the research and analysis has to be, to the point where if a case involves more than one country, the law firm may need to spend millions of dollars hiring specialists and obtaining evidence.

 

They might appear to be greedy based on the published settlements, but in reality they are in a very risky business. One of the plaintiff lawyers listed above, Slater and Gordon did so well they expanded overseas, then were all but wiped out and are just a shell of what they used to be.

 

Another on the list is Shine Lawyers, Erin Brokovitch's firm, and she recently said that although the film about her life ended with a big Class Action win, she is still fighting the same people about the same thing they were alleged to be doing decades ago

 

The Litigation Funders fit in as support for this highly volatile situation, and we could assume would have some terms and conditions in relation to supporting the legal firm, which would be subject to the same Australian laws than and other Australian suppliers are subject to.

 

The Australian story went on to outline a wish list by which Litigation Funders could be made to walk away.

 

Whether that would stack up against our ASIC marketing safeguards is nother matter.

 

There was a segment in the story about Directors and Officers Insurance which is unrelated to PL business. While some claims can be relatively high, they may well be small enough for a big company to self insure, but that's not the case with PL.

 

Once again, this story doesn't relate to our tiny recreational aviation industry, unless someone hits a regular passenger aircraft, and even then you would probably have to hit a jumbo to activate what was talked about in the story

 

 

[turboplanner]

Sorry, I wrote #279 in bed on the phone early yesterday morning. It's full of typos which can't be corrected, but it's still easy enough to follow, except that the first paragraph after Defendants should read: "We should NOT discuss them."

 

The reasons are they may be sub judice and we are not lawyers.

 

 

[DenisPC9]

I notice that neither you nor DenisPC9 have provided any information on how legislative drafting is an issue here.

 

Given the much higher level of intelligence exhibited here than many other fora, I assumed as that slack legislative drafting would naturally lead to legislation full of loopholes and exemptions, which enables all sorts of carrying-ons and shenanigans, it would have been apparent in the indignation of the tone of the article, whereby foreign law companies are making a motza here due to those holes in the legislation.  It obviously wasn't apparent to some.

 

 

[turboplanner]

Given the much higher level of intelligence exhibited here than many other fora, I assumed as that slack legislative drafting would naturally lead to legislation full of loopholes and exemptions, which enables all sorts of carrying-ons and shenanigans, it would have been apparent in the indignation of the tone of the article, whereby foreign law companies are making a motza here due to those holes in the legislation.  It obviously wasn't apparent to some.

 

and so far there's nothing to say that has happened.

 

Any company is allowed to finance its operations, they don't need legislation to do that, and given what happened to Slater and Gordon, I can see why they would be interested in sourcing funds from a Litigation Funder who know the risks and is prepared to carry them.

 

Once the financial support is in place it allows a law firm to package much bigger Class Action cases, so its not surprising that the other side would be feeling more exposed.

 

 

[Methusala]

Given the much higher level of intelligence exhibited here than many other fora,

 

Forums ( The current entry from the Oxford Dictionary says: The plural of forum is usually spelled forums )

 

 

[Geoff_H]

Many years ago I owned a Cherokee.  I could not really afford it then.  I opted to insure the passenger liability for $250,000 a seat.  At the time I was told by the insurance agent to make sure that I killed passengers and didn't maim the that was much cheaper. 

 

 

[turboplanner]

Many years ago I owned a Cherokee.  I could not really afford it then.  I opted to insure the passenger liability for $250,000 a seat.  At the time I was told by the insurance agent to make sure that I killed passengers and didn't maim the that was much cheaper. 

 

In the mid 1980s we survived by insuring each race meeting for $1 million doing it that way about 100 tracks around Australia could afford to cover themselves for virtually any eventuality if a car went into the crowd.

 

Your colourful agent was telling it like it still is. Today, very roughly, a fatality including legal costs is around $3 million,  a quadriplegic around $14 million.

 

The reason for the higher cost is rebuilding the house for maybe 40 years of life on a bed, suitable car equipped with medicals to carry a prone quadriplegic, 24 hours qualified nursing for life (again maybe 40 years), medical/hospital treatment for life.

 

So the basic principles haven't changed much, but the key factor which you control is the plaintiff has to (a) make a claim and (b) prove you were negligent before any serious legal activities will gain traction.

 

 

[Bruce Tuncks]

In the cases I have followed,  class actions empower people who otherwise would not be able to afford to sue.

 

I can imagine that any action against CASA, for example, would require a class action because CASA has unlimited resources and the individuals do not.

 

Funding such things is a new idea to me...  gosh, the funder would have to be confident of a win. But why do they need to wait for  a class action? I thought the whole idea was to share the costs among the class.

 

 

[turboplanner]

In the cases I have followed,  class actions empower people who otherwise would not be able to afford to sue.

 

I can imagine that any action against CASA, for example, would require a class action because CASA has unlimited resources and the individuals do not.

 

Funding such things is a new idea to me...  gosh, the funder would have to be confident of a win. But why do they need to wait for  a class action? I thought the whole idea was to share the costs among the class.

 

Most cases are brought by individuals.

 

The deep pockets thing promoted by some is a myth. What is FAR more important is for you to present facts which are factually correct and are legally supported, leaving the other side nowehere to go, no matter what the depth of their pockets.

 

In my experience most people don't bother to do that and wonder why they lose.

 

The funders operate the same way as insurers; they can lay off the odds because they have a succession of wins and losses like insurers.

 

Bear in mind Class Actions usually have thousands of plaintiffs, which is why they are not of much interest to us.

 

 

[onetrack]

The class actions are popular simply because they're fully-funded, and offer a possible return, for no requirement for the plaintiff to pay anything up front. 

 

I joined a class action against banks once, for recovery of account fees that were deemed unlawful, based on the fact that the fees charged had no relationship to the costs or losses incurred by the bank.

 

The class action failed miserably (as virtually all bank lawsuits do), simply because the judge ruled that there was no need for the bank to prove it had lost money or incurred costs via customers failure to pay, or pay on time.

 

The judge ruled the bank could charge what it liked as fees, simply because it was a penalty decided by the bank, and they could decide on the size of the penalty.

 

The class action cost me nothing up front and it cost me nothing to lose. The correspondence from the litigation funders made this abundantly clear.

 

The lawyers writing up banking contracts and agreements rarely leave any holes in those contracts and agreements.

 

And at the end of the day, who has the virtually unlimited funding to reject any lawsuits, for as long as it takes for the other side to run out of money, and will to prosecute?

 

The Bond Corp funding clawback saga took 27 years to come to a grinding halt with a mediated settlement - then the litigants who didn't join the class action in the first place, stepped in to make a claim for their share of the $1.75B pot, proffered by the banks.

 

Then the W.A. Govt stepped in with legislation that stopped any further litigation or claims resulting from the case, to enable an end to it all - and the new litigants took that action-stopping W.A. legislation to the High Court, and it was thrown out as invalid, and "inconsistent with existing tax laws". Thus the merry-go-round started up again, and it will continue to at least the middle of the next decade.

 

https://www.abc.net.au/news/2016-05-16/court-rules-against-wa-government-bell-group-alan-bond-laws/7417122

 

 

[facthunter]

IF you rob them, you are only imitating THEM. They are not held in very high regard deservedly. Profit is all their performance is based on and their bonuses. The welfare of the customers is very secondary. The RC had plenty to say about that.. Nev

 

 

[DenisPC9]

Forums ( The current entry from the Oxford Dictionary says: The plural of forum is usually spelled forums )

 

I sit corrected, High School Latin has finally lost.   ?

 

 

[Student Pilot]

There must be a formula for working out the average pedant numbers per forum, be higher than the average population I recon ?

 

 

[onetrack]

You normally have to stand to be corrected. 

 

 

[DenisPC9]

You normally have to stand to be corrected. 

 

True but like you and the rest of this scurvy bunch we are doing all this on a laptops, desktops, tablets and phones, So at least I, will remain seated. ?

 

 

[Kununurra]

Got any glaring examples of this statement Onetrack.

 

“The fire protection industry has boomed in recent years, aided by more and more Govt legislation and ever-tightening rules. The income for companies assisting businesses to comply with those ever-tighter fire rules and regulations is predicted to double in the 5 yrs between 2015 and 2020.” 

 

Not sure what your reference is here but just thought I would mention two incidents that occurred  to assist you in understanding why change is required but has not yet happened.

 

Lacrosse “Melbourne”

 

Grenfell “UK”

 

Happy to hear your side of your statement to validate where you think we have seen legislation & ever- tightening rules have any impact.

 

 

[onetrack]

Kununurra, there have been major legislation-tightening responses to major building fires, worldwide. The Grenfell fire, the Childers fire, and a number of major Middle-Eastern high-rise building fires, have all led to increased legislation and tighter, high-rise building, fire-protection requirements.

 

The major increase in the number of apartment-style buildings in Australia is leading locally, to more fire safety legislation, usually incorporated into new or revised building and construction laws.

 

The Climate change drive is adding to the chorus, hotter weather events correspondingly leads to more fires - including bushfires, which also fall under tightening legislative requirements.

 

In W.A., the Govt has introduced the BAL requirement - Bushfire Attack Level. Large areas of the State are covered by this rating, and it involves substantial additional costs for home and property owners, and has led to a burgeoning market in fire safety advisors and consultants, fire equipment retailers, and fire safety equipment retailers.

 

https://www.globenewswire.com/news-release/2019/03/13/1752273/0/en/Global-Fire-Protection-System-Market-Will-Reach-USD-98-85-Billion-By-2025-Zion-Market-Research.html

 

 

[Kununurra]

Grenfell, legislation ignored and look at the outcome.

 

Childers, charges were laid with a conviction which was a great outcome given the worst fire in QLD history.

 

BAL-are set to protect Western Australians not make it harder for them. It is the firefighters who race into these buildings when people run out of them, so if we can provide another level of protection for our volunteer firefighters then I support it.

 

In terms of public liability which this thread is about in your references the public is liable for their own safety and legislation is there to protect them.

 

 

[turboplanner]

In terms of public liability which this thread is about in your references the public is liable for their own safety and legislation is there to protect them.

 

The Class Action and legislation comments should have had their own threads.

 

The following comments don't necessarily relate to any recent events.

 

The public don't succeed in a public liability suit unless they can prove someone breached their duty of care, so up to a point they are responsible for their own safety. Unfortunately other people and organisations have a recond of breaching THEIR duty of care, and to be fair, thet PL law is based on an accidental breach as against a malicious decision made to hurt people.

 

In the case of a dwelling, a defence against a PL suit could be that the designers or builders had complied with industry codes or Australian Standards.

 

With the benefit of hindsight after a disaster a Royal Commission or an industry or a government may find that better codes could have prevented deaths, and upgrade the codes. To discharge your duty of care you then need to comply with the more stringent code.

 

An example of this was the aftermath of the Ash Wednesday and Black Saturday fire in Victoria, where new "Bushfire Overlays" were added to all Council Planning Schemes to reduce the chance of residents being killed in fires. The map shows the Brown Bushfire Prone Area and pink Bushfire Management Overlay areas in part of Frankston South.  In these areas there are much tighter standards on what vegetation is allowed and the design and construction of the house. All the people involved in designing and building a new house, including the Council now have a duty of care to comply with these overlays. That's where Public Liability fits in.

 

 

[turboplanner]

The map refers to #297

 

In Victoria the link will allow you to do a search of your property and select the Bushfire Overlays

 

https://mapshare.vic.gov.au/vicplan/

 

This link will take you to the Planning Scheme for your address, the definitions of items such as "Bushfire Prone Area", where the overlays are etc.

 

https://planning-schemes.delwp.vic.gov.au/

 

[Jim McDowall]

All the people involved in designing and building a new house, including the Council now have a duty of care to comply with these overlays. That's where Public Liability fits in.

 

That is fine for new houses which make up a small percentage of the total housing stock. Councils real duty of care is often compromised by their neglect of roadside vegetation and rural roads citing "care for the environment". The current fire "emergency" on the east coast may have some outcomes that the green lobby may not like.

 

 

[turboplanner]

This story, published in roday's Age is about two modwives charged with negligent manslaughter over a home birth death.

 

The elevation to this over and above the civil negligence based on Donoghue v Stevenson is explained:

"For this form of manslaughter, prosecutors must prove the accused owed the victim a duty of care and breached it negligently, both consciously and voluntarily"

WQ10151.pdf