September 2019


Myth buster exposes fallacies

by Resolve Editor, Kate Tilley

Queensland Supreme Court Justice Roslyn Atkinson exposed 10 myths about insurance law and litigation in the opening presentation to AILA Qld’s Insurance Law Intensive: Under the magnifying glass.

Myth 1: Regulations and warnings about safety risk are creating a “nanny state”

Justice Atkinson said some people thought regulation meant we were controlled by “an over-cautious crabby, grey-haired old woman who stops us having fun” but, in reality, regulation made the world safer.

She cited examples, including smoking restrictions, which met strong opposition, particularly from tobacco companies, which had tried to stop plain packaging and argued smoking bans would be the demise of pubs. “Regulating smoking has not destroyed our laidback lifestyle but has increased our health,” she said.

“The suggestion was seriously made that we would have no social life if cigarette smoking was banned. But we know the cost of smoking for sickness and mortality.”

Life insurers asked whether people smoked and adjusted premiums accordingly.

Making seatbelts and child restraints compulsory was hotly debated amid arguments they restricted freedom, could behead people in accidents or prevent them getting out of a vehicle, but the reality was a dramatically lower road toll.

Random breath tests, bicycle helmets, internet filtering and control of social media, and banning junk food advertising to children were other examples. “All these things reduce risk,” Justice Atkinson said.

She said a child at her own children’s school was saved from a serious brain injury by wearing a bicycle helmet.

Myth 2: Litigation is taking the fun and adventure out of life

Justice Atkinson said: “This is a natural corollary of the first myth.”

Myth 3: Paying more for your insurance is unfair

Justice Atkinson said premiums reflect the risk. Higher premiums might be what an employer needs to make a workplace safer.

Myth 4: Liability laws do not change the risk of injury to people or property through negligence

In contrast, she said liability laws mad people safer and reduced risk. It was unarguable that tort law, workers’ compensation and workplace safety laws made people safer.

Myth 5: People who are injured because of another’s negligence deserve to be compensated in a way that others don’t

Not so, Justice Atkinson said. The needs created by disability did not change depending how the injury occurred.

Myth 6: It is unnecessary to have a comprehensive scheme for dealing with personal injury no matter how caused.

Justice Atkinson disagreed, arguing in favour of schemes.

Myth 7: Cost shifting is not really a large problem

Justice Atkinson said cost shifting was “a perennial problem” and governments have dealt with it in often fairly brutal ways.

Myth 8: Lawyers and judges live in ivory towers

“We don’t,” she said. Judges see the worst that can happen to people and what other people can do to each other.”

Myth 9: Judges decide cases according to their predispositions and sympathy

Justice Atkinson cited her decision in Hancock v State of Queensland [2002] QSC 027 to dispel that myth. Susan Hancock, who had three children, one with disabilities, sued doctors for a failed sterilisation operation that resulted in a pregnancy.

Ms Hancock was “an intelligent and fairly resilient individual who has been exposed to substantial adversity. She is an admirable woman who has coped well with the difficulties with which she has been faced and has held her family together, often against considerable odds,” Justice Atkinson’s judgement said.

However, there was no negligence by the doctors and Ms Hancock’s case was “an example of the known but inexplicable failure rate of this procedure”.

Justice Atkinson said her sympathy for Ms Hancock did not change her consideration of the evidence.

Myth 10: All cases settle so there’s no need to worry too much about pleadings and preparation

Justice Atkinson said there was a view “experts could roam free and express their opinions” in personal injury cases. However, the Qld Supreme Court Practice Direction no 17 of 2012 about case flow management in the civil jurisdiction showed that was not the case. Litigators needed to prepare thoroughly or settle early.

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Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.