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Legislative Assembly for the ACT: 2002 Week 11 Hansard (26 September) . . Page.. 3296 ..

MS TUCKER (continuing):

This bill also puts the responsibility back on individuals not to drive when intoxicated, not to travel in cars without wearing safety belts, not to ride motorbikes without wearing a helmet and so on. This is all part of an overall process about making civil laws around negligence and damages congruent with our criminal law and with other community expectations.

Another key change is that the court will now be able to award damages in the form of structured settlements. This will make a significant change to the living conditions of people suffering permanent injury, ensuring greater certainty and comfort. The key issue is that we are waiting for the Commonwealth government to amend the taxation law to exempt such settlements. When every government may be criticised for acting slowly during the so-called insurance crisis, this is something the Commonwealth government could do now.

Happily, this proposed section includes an explicit statement that courts can make a finding of liability independently of awards of damages. This has the potential to simplify complex cases and allow people to get on with their lives to some extent while waiting for injuries to stabilise and compensation to be determined.

This bill incorporates the 2001 Defamation Act, which was in itself a progressive step towards public redress and away from financial penalties and drawn-out court cases. The Greens have expressed an interest in further reform to lessen the protections available to corporations and public figures against public interest contentions. This act, however, has been in force for only a few months, and it is too early to see how effective it is proving to be, so further change would be premature.

Other acts and law modernised in this bill include liability relating to innkeepers or travellers, common carriers, occupiers and animals.

The more contentious areas of this bill lie in the limitations on cost. There is a popular presumption that legal costs are driving up insurance premiums and that we can always blame the lawyers if the system is not working well. During the detail stage I will address the issues of limiting costs in personal injuries damages matters and making lawyers personally carry the cost of cases with no reasonable prospect of success.

My overarching comment at this stage is that it would be good to have evidence that these really are cost drivers in the insurance equation and that there are no significant access or equity consequences to such an approach. But evidence has not been produced to back up these initiatives, leaving me to imagine that it is simply a way of keeping the insurance industry on side.

This deal allows for neutral evaluation, which may or may not expedite the process, depending on the quality of personnel and the level of resources available to the court. I will make further comments on that at the detail stage as well.

In part 11.2, commendably, there are fairly significant reporting requirements for insurers. One of the key problems we have faced in the ACT in regard to workers compensation, public liability and professional indemnity insurance is that we have not known the reality of the business.

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