Page 3886 - Week 13 - Thursday, 17 October 1991
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multicultural society different groups and different faiths have different approaches to funeral services. We leave it to the courts to determine what in all the circumstances is reasonable, reflecting that diversity within the community.
Secondly, the Bill abolishes the defence of contributory negligence in fatal accident cases. The Compensation (Fatal Injuries) Act 1968 allows dependants of a person negligently killed in an accident to claim from the person responsible for the accident compensation for the loss of the services or wages of the deceased. The Act does not allow compensation for the emotional or spiritual effects of loss of life.
The Act allows a person, in effect, to say, "I would have received benefits in terms of child-care, housekeeping services or income; but now because of the death I will receive nothing, and I claim monetary compensation for this loss". It is a significant and fundamental right which plays a major part in allowing a family unit to continue to function in the face of the loss of a parent.
In the ACT the right is especially important in relation to fatal accidents on the road, and it is, I believe, road accidents which make up the vast majority of claims of this sort, with work accidents coming a distant second, very fortunately. In the ACT the defence of contributory negligence applies to these claims. In a practical sense, this often means that the court will have to analyse and dissect the actions, motives and mistakes of a person killed in a road accident in the moments before death. If in this retrospective exercise the court finds that the person killed contributed to the accident in that perhaps he or she did not keep a sufficient lookout or did not brake soon enough, then the court will reduce the amount of compensation going to the relatives who make a claim for the death.
Besides the many practical difficulties which bedevil this exercise, it is fundamentally an unfair process. The existing legislation says that the court may reduce compensation as it thinks just and equitable, having regard to the deceased's share in the responsibility for the damage. The Community Law Reform Committee reported that it will never be just and equitable to reduce a dependant's compensation for these reasons. This is because dependants, the bereaved family, have nothing to do with the mistakes the dead driver may have made in the moments before death. What the present law does, in effect, is burden the dependants with the sins or momentary mistakes of another person, the deceased.
Abolition of the defence will not affect the basic requirement of claimants that they prove that the defendant was negligent and that the negligence caused the injury. Drivers or employers and their insurance companies will continue to be able to defend claims by arguing that they were either not negligent or not responsible for the
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