President's Blog Christmas 2015

20 Dec 2015 20:08 | Anonymous member (Administrator)

Victims: should we be taking better care of them?

As we head towards the festive season and all the chores that it brings, accidents are hopefully not on the top of our list.

None of us want or expect to have an accident nevertheless how we deal with accidents and the compensation of victims is as important to upholding the rule of law as any of the other laws which govern our modern societies.

The entitlement to compensation arises if somebody has suffered a loss as a consequence of the tortious act of another.  If the person can establish that he has been wronged, and then establishes his loss, he is entitled to compensation.

In my view any attack upon rights and entitlements can present a challenge to the rule of law and it stuck me while reading that in a recent review the UK Government proposed a raft of changes including restrictions on personal injury compensation, which is concerning.

With the increase of the use of motor vehicles injuries arising from them have become far more commonplace.  As a means of protecting the injured victims from other people’s negligence, compulsory third party (CTP) schemes have been introduced by Governments in many parts of the world who run, or oversee the schemes.

A person injured in a motor vehicle accident is no less a victim than someone injured by an unprovoked assault or other event as a result of which they suffer an injury.  They have an entitlement to compensation to the extent to which they were not responsible for their injuries.  In the case of motor vehicle accidents, to say that such a person is not entitled to compensation simply because the mechanism for injury involved the tortious use of a car is difficult to support. 

Why do we not trust the courts to measure the extent of compensation?  If the injuries are minor then the compensation awarded will be accordingly minor.  A person should not be stigmatized as unworthy purely by measurement of the extent or type of injury. Compensation is not awarded if a person is not actually injured and in my 30 years’ experience in the field (more often acting for insurers) it did not appear that people would, generally speaking, intentionally suffer an injury simply to receive a financial windfall.

Any erosion of the rights of victims should be carefully scrutinised.  We can only try to implement changes to the conditions and to improve safety for these victims but this is not best served by curtailing genuine compensation in the event of accidents. There should be a significant and compelling justification to do that.

When I talk about victims I am quickly reminded that it is a broad term and of the ways in which the peoples of the Commonwealth may become victims through car accidents as above but also through crime, or as victims of war, hatred, and terrorism. 

This week I came across an article describing the 20 year anniversary of the murder of Philip Lawrence, a headmaster of a boy’s school in London, who was stabbed to death while trying to break up a fight outside his school.  Mr Lawrence was one of an increasing number of victims of knife crime, a problem shared by many of our Commonwealth member states including my own.  

Knife crime is particularly prevalent amongst the young and many of these young people may also be victims of a culture of fear, bullying or a gang culture the leads them to carry knives in the first place. They also deserve our help and support to change their circumstances and forge a better future.  Mr Lawrence’s widow chose to address the problem at the root cause turning young people away from gangs by starting and award programme for positive contribution of young people between the ages of 11-20. 

In Australia we are saddened to see an increasing number of young people become victims of radicalisation by terrorist groups who turn the social media tools intended for positive expression into weapons which breed dissatisfaction and draw our youth into a culture of violence.  The pointless violence was demonstrated in the Lindt Café siege and killings in Sydney one year ago.

As I noted at the beginning of this article, when we think about how people come to be victims it is broader than just a single cause but how we deal with them under all circumstances should be even handed and appropriate. Any less than this is a cause for concern and does both the victim and us a disservice.

We are guided by the Latimer House Principles and the Commonwealth Charter which set out the objectives and good governance guides for all the member states.  CLA remain committed to those objectives.  

May I wish you and your families a peaceful and joyous festive season and good wishes for the New Year.

Alexander Ward is President of the Commonwealth Lawyers Association and a qualified barrister who practises at Edmund Barton Chambers in South Australia.

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