Page 4747 - Week 15 - Thursday, 21 November 1991
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With respect to the first Bill - the Law Reform (Miscellaneous Provisions) (Amendment) Bill - there is reference to - - -
Mr Moore: You should go Independent, Gary.
MR HUMPHRIES: That is a very tempting invitation, Mr Moore; but I think it involves too much work. You share the load more with a party. I will stick with that.
Mr Connolly: You could become an even newer conservative.
MR HUMPHRIES: I happen to have the Oxford Dictionary open at the page headed "conservative", as a matter of fact. I read the definition just a few moments ago, so I am qualified to comment on that; but I will not do so yet. Mrs Nolan is a member of the conservative party here. I am not a member of the conservative party, so I can only indicate my reservations about this.
Both this Bill and the Compensation (Fatal Injuries) (Amendment) Bill 1991 deal with the notion of fault. They provide that the notion of fault should be, if not removed, then seriously downgraded as an element in an action where injury or death has resulted. In the case where a statutory duty is imposed on a particular person - often it would be an employer - and an employee is injured as a result of a breach of that statutory duty, the thrust of this Bill is that the employee's own negligence does not constitute any offset that the employer might claim in the course of that action brought by the employee.
I refer to employer and employee here, although many other sorts of statutory duties are imposed. It may be that this applies in other circumstances, but I suspect that probably the most common form of this duty falls in employment cases. It then follows that the injury, or even death, I suppose, sustained by that employee is fully claimable; that is, the full compensation that might flow from an injury of that kind is payable to the employee. There is no offset; there is no reduction for the contributory negligence of the employee.
Certainly, that position makes life a little easier for lawyers. It certainly makes it easier for courts and insurance companies and others to reach agreement on the course of action to be adopted in particular claims or particular cases. It makes it easier for parties to come to a position where they understand very simply what the law is, but whether it is just or not is another matter.
The other side of the notion of fault - fault is a fairly unglamorous, unfashionable concept these days - is responsibility. One finds fault where another person has failed to observe his or her responsibilities. By passing this legislation, we are saying, in effect, that one's responsibilities are in some way diminished; one's
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