Page 4748 - Week 15 - Thursday, 21 November 1991
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responsibilities to be careful, to take care, for example, in a workplace, are not so serious as they might have been before the passage of this legislation. If I am careless about the handling of a machine, it does not matter, because there is a statutory duty on the employer. Irrespective of how foolish I have been, I am entitled to compensation at the full amount of the damages that I have sustained through my action.
This can constitute a quite absurd set of affairs. The breach of duty can be very notional, almost of a technical kind, on the part of the employer. An employee could, under these arrangements, be grossly and, arguably, even wilfully negligent and still be entitled to compensation at a very high level. I recall, for example, a case, which is not quite analogous but is very near, in the United States, of a man who decided to commit suicide by throwing himself in front of a train. He was unsuccessful in committing suicide, but did succeed in losing all his arms and legs in the accident. Afterwards, he decided to sue the operator of the train on the basis that the driver of the train had not braked quickly enough when he saw the man fall in front of the train and, therefore, although the applicant was principally responsible for this incident and for his own loss, there was some element of contribution on the part of the driver of the train.
Because the measure of damage was so enormous in that case - losing both arms and legs would be a very large measure of damage - that element of contribution, small as it may have been, did result in a very substantial pay-out to the man. That strikes me as being wrong. I do not believe that in those circumstances a person who so wilfully or grossly negligently causes his own loss ought to be in the same position as a person who suffers a loss substantially or entirely without any fault of his own.
However, that is the position that this legislation puts forward. It may make it easier for courts and lawyers to deal with these matters because there is no notion of offset, and it appears that that is the case the Government puts before us. It has support in the house and from my party, and I will say no more about that aspect of it. Incidentally, the Compensation (Fatal Injuries) (Amendment) Bill takes that one step further and provides that where death results from an accident there is no offset, no contributory negligence element. I can understand that to some extent. The Attorney, in his second reading speech, said:
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.
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