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Legislative Assembly for the ACT: 2003 Week 6 Hansard (18 June) . . Page.. 2037 ..
MR STEFANIAK
(continuing):Mr Stanhope today gave an example of rights being taken away from a child who had been horribly affected-something we would all dread as parents; something anyone would dread. Their rights would not be taken away either under Mr Smyth's legislation. They would actually be enhanced. They would not be taken away by what Premier Carr is doing in New South Wales because in instances like that you would be able to take action fairly quickly. Cases would be assessed and they would not have their rights taken away. So I think he is the one who is having a knee-jerk reaction.
MR SPEAKER
: The member's time has expired.MR STEFANIAK
: Thank you, Mr Speaker. I will conclude by saying I think Mr Smyth's bills are worthy of support and are a crucially important contribution to this very serious problem.MS DUNDAS
(4.18): The ACT Democrats welcome debate on the insurance reforms which were proposed by the then Deputy Opposition Leader, Mr Smyth. This reform package was announced on 15 July, almost 12 months ago. We understood that there were going to be five bills but when the package was finally introduced it contained only three, and they are the bills that we are debating cognately today. I will comment on the bills in reverse order.The Adventure Activities (Liability) Bill is designed to allow customers to sign a waiver indemnifying the operator should there be an injury. This is designed to help operators of adventure sports, such as abseiling, hang gliding, hot air balloons and fishing, obtain insurance by this waiver. This bill does not rule out the possibility of litigation entirely. There is still the ability to take legal action in the event of a serious injury. A serious injury, though, is defined by the insurer. Whilst in other jurisdictions there has been the precedent of allowing clients to sign away their legal rights, this is not a proposal that the ACT Democrats can endorse.
The second bill is the Legal Practitioners Amendment Bill 2002, which I note had the rather catchy working title of the rejection of the litigious society bill 2002. Although there is little data available showing that there is a causal link between the no win, no fee system and an increase in premiums, the bill proposes to ban no win, no fee advertising.
Prior to the removal of the ban on advertising by lawyers, there was little no win, no fee litigation, as consumers were unaware of which lawyers would be prepared to work on this basis. As a consequence, many injured people who may have had a clear-cut entitlement for compensation could not afford to pay a lawyer or pay a court bond, which can be required in advance to cover any legal costs awarded against the plaintiff.
Alternatively, even if they could afford to run an initial case, they may not have been able to afford to defend an appeal. Many insurance companies and other well-resourced litigants have forced injured persons to drop their case or settle for very low payouts if an appeal was pursued. No win, no fee litigation opened up compensation for people with little available cash. Lawyers will only take on a case on this basis if they think they are almost certain to win, or the offer would not be financially viable. The advent of no win, no fee lawyers may have increased the number of litigated claims and therefore perhaps also insurance premiums but there is no data indicating an explosion.
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