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Slippery slope in judging hurt

23 Jul, 2008 11:39 AM
There's a nice phrase in the remake of the fine movie 3.10 to Yuma where the hero, Dan Evans, talks bitterly of having accepted $100 from the US Government as compensation for having his leg shattered in the Civil War. He realised, he said, that he was not getting the money so he could walk away, but so they could walk away.

There's inevitably a good deal of that whenever citizens come into contact with the law. Judging by the way some relatives of the victims of crime go on after the perpetrator is sentenced, one would think the measure of the damage done must be the violence of the sentence. They will pronounce themselves insulted and unable to find ''closure'', say, if the villain receives only two years' jail for the culpable driving which killed their son, or if a rapist receives only five years.

Likewise with civil cases for damages, where, for some, the size of a verdict is a reflection of one's intrinsic worth, rather than a necessarily inadequate way of trying to restore the situation before a tort. Is $20,000 enough for a broken leg? Can a man rendered paraplegic through the negligence of another ''walk away'' with $1.7 million?

In recent decades, the law has begun capping some types of negligence verdicts, but inevitably in a way that leads to complaints. Generally across Australia, the most a person can receive for pain and suffering because he has been rendered quadriplegic by provable negligence is about $500,000, though he may receive more for continuing care. For some, that seems very mean, the more so given that until recently, a defamed film star might receive $750,000 for some slight on his or her character, or a company executive $5 million for being sacked. These days, caps on damages have created some comparability. Often, however, no verdict, however great, can put things back to the way they were.

If I am knocked over by a Telstra truck, I will probably sue Telstra rather than the driver; it has deeper pockets. Likewise, defamation plaintiffs sue publishers, rather than (generally improvident) journalists.

The word ''vicarious'' means ''through another'', and vicarious liability is the liability a person has for the acts of another person.

I can sue Telstra because its driver is (presumably) an employee carrying out Telstra's business at the time of the accident.

I can sue the Canberra Centre owners if I slip on a wet floor because the negligent cleaner was one of their hirelings.

But what if the Telstra driver is absent without leave, has the vehicle, improperly, in a place where it should not be, and is drunk on duty in spite of manifest instructions and systems in operation designed to ensure driver sobriety? Should Telstra be liable?

The limits of how far an employer, supervisor or other person can be held accountable for the actions of others are far from settled.

Is a school always responsible for any injuries to students on a school playground?

We know that children are mischievous and, in some senses, that what happens to them is their own fault. But, knowing what the darlings can get up to, should we not always have the strictest supervision by large numbers of staff at all times? How much is enough? Is accident proof that there was not enough?

There are limits to how far the duty of care can extend, to what dangers might have been reasonably anticipated, and, where some action by a teacher or supervisor is said to have caused the damage, to whether they could be said to have been acting in the course of their duties.

A school may be held responsible for the application of inappropriate discipline on a student by a teacher; it may not be responsible for the actions of a teacher who seduces a student out of hours.

Some of the issues of appropriate compensation, vicarious liability, and, probably, the appropriate body to sue, are likely to come to a head soon with litigation about sexual abuse by religious teachers or pastors. They are not easy questions. Such is the moral advantage of those speaking on behalf of victims that churches, schools and groups such as the Scouts are inevitably on a hiding to nothing, even when something can be said for their position.

Let's distinguish, for a moment, between abuse as such, and the objective further abuse that many victims feel when they think their complaints have been ignored, covered up, or inadequately dealt with.

Imagine that a complaint once made to church authorities had resulted in swift action (including, say, police investigation and criminal action in the courts, positive anticipatory action about apologies, counselling and so on, active efforts to notify and assist other potential victims, and definite behaviour by the Church to amend any weaknesses shown in its supervisory systems).

If there were no complaint about the follow-up response, could the victim still sue the church for the misdeeds of, say, the priest who sexually assaulted the altar boy, or the religious brother who fondled his student?

One must distinguish between the compassion and assistance that a church should offer anyone in trouble, particularly those hurt by the actions of its own, and legal liability.

Just how liable the Church is will depend on the circumstances. In some cases abuse is so far outside the routine it cannot be said to have been foreseeable by a supervisor. People are not authorised to molest others. That predators are cunning, and act without other witnesses, often compounds the problem.

With abuse by religious groups, questions of authority, abuse of trust, and of the proximity between the abuse and a function carried out by the abuser are relevant. It is the more obvious if the abuse is at a school, or during a religious activity; perhaps the less so if it is separated from the place or activities where the power and the trust is most obvious.

There are now lawyers across Australia touting for abuse customers, and investing their enterprise with all of the virtue of the hurt done for the clients.

Not a few use extra-judicial measures to get around some of their pleading difficulties, or the problems caused by claims of abuse long ago, by people now dead.

They are often helped by the hamfistedness of church officials most recently George Pell and one of his assistants, Tony Fisher seemingly unable to combine a pastoral compassion with practical reality, and, as often as not, giving the appearance that they regard complaints as tiresome, complainants as greedy, and any raising of the problem as tactical.

Less of a problem these days is ample evidence that many of their predecessors swept complaints under the carpet, shuffled known predators around, and used moral and legal pressure to shut up victims.

This can have the effect of making liability direct rather than vicarious: indeed, underline the fact that, for many victims, the lasting hurt of which they complain came after the initial abuse.

A prudent steward will seek to limit payouts and liability, even if they ought to realise that a compassionate response will help achieve that, if at least (just as importantly one might think) mitigate damage.

Many victims (and certainly their lawyers) will measure vindication by the size of the verdicts, even as they insist that no money could compensate for the suffering. The loudest victim of recent weeks has asked for $3 million.

Reasonably large verdicts are salutary, but, given the limits we place on ordinary compensation schemes for victims of crime (about $50,000) as well as the limits placed on quadriplegia, it should be somewhere between those amounts, say $100,000 for a worst case.

Where the Church ought to be embarrassed is with a gap over whom to sue. A NSW case last year gives ample wiggle room for bishops, and others, seeking to evade liability. In Australia, Catholic bishops are not regarded, at law, as corporations sole. And formal trustees of church property are not responsible for the actions of church servants.

It would be shameful if those liable or vicariously liable for abuse could escape by pleading technicalities. Saying that, however, is by no means to assume that handsome compensation should quickly and inevitably follow complaint.

It is action, more than money, which matters most.

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