Harold Luntz

The Role of Compensation in Health and Safety at Work

No one knows precisely the numbers of persons adversely affected annually in their health and safety at work in Australia. Even provisions such as section 181 of the Victorian Labour and Industry Act 1958? which is applicable only to accidents, seem to be neither complied with nor enforced. The best information available comes from statistics relating to workers’ compensation claims. These are inadequate for many reasons. First, they mostly depend on reporting by insurance companies and self-insurers, and there is evidence, referred to in some of the publications of the Australian Bureau of Statistics, that there is considerable under-reporting; so much so that on 19 March 1980 the Acting Deputy Commonwealth Statistician notified users of the Victorian statistics that he had stopped publication of the Victorian series after 1974-75. Secondly, they cover only persons within the scope of the workers’ compensation legislation and thus exclude most self-employed persons. Thirdly, some persons entitled to claim may fail to do. so or may, for one reason or another, not succeed in their claims. Fourthly, it may be difficult to establish a causal connection between a disease and exposure to toxic substances at work, so that many cancers and other illnesses that show up years later may not be correctly attributed to industrial conditions. Fifthly, the statistics are not gathered in a uniform way, some showing all claims, some requiring absence from work for a period which varies from one day to one week and some being based on

Torts Turnaround Downunder

The political pendulum swings and governments succeed one another. The economy cycles and we go through booms and recessions. I offer no metaphor, but similar changes occur in appellate courts. These changes may not be unconnected to the other two phenomena. In the Commonwealth judges are appointed by the government of the day, not elected. It would not be surprising if, in selecting from among the candidates for appointment, a government were influenced to choose those thought to be ideologically more predisposed to the political philosophy that the government espouses. The process may be more open in the appointment of federal judges in the United States, but that it occurs elsewhere is scarcely to be doubted. Since judges in the Commonwealth hold tenure for many years, there may be a lag before a court is affected by current political attitudes. The process may be seen to operate more speedily in jurisdictions where judges are elected and lose their offices if they do not conform to the will of the electorate. This has been demonstrated for California in the field of torts in an article by Stephen D Sugarman, ‘Judges as Tort Law Un-makers: Recent California Experience with “New” Torts’.1 This note proposes to look at some statistics that demonstrate a similar change in the attitude of the judges of the High Court of Australia, in relation to torts cases that have been decided by that court during the tenure of the previous two Chief Justices and the beginning of the tenure of the present Chief Justice. It then goes on to consider the latest decision of the court, in Modbury Triangle Shopping Centre Pty Ltd v Anzil.2 It suggests that the court had a choice in the way it decided the case and that it made the wrong choice.   Oxford University Commonwealth Law Journal 95