Signs Point to Trouble Ahead
A few years ago the American humorist Dave Barry presented a vexing scenario to his readers. Imagine that your wedding ring falls into the toaster, and when you poke your hand in to retrieve it you suffer electrical shock, burns, and mental anguish. Who do you sue?
You could take action against the shop where you bought the toaster, for selling it to an obvious cretin. Or perhaps the manufacturer would be a better target, because in the instruction booklet where it says 'you should never ever stick your hand into the toaster', they were clearly negligent for not adding the statement 'not even if your wedding ring falls in there'.
This may give bitter solace to the Makauskas family and their insurers as they contemplate last week's Supreme Court jury decision against them. Alex and Pam Makauskas were found to be 70 percent responsible for the broken spine suffered by a friend of their son who dived from the fence of their Gold Coast home into an adjoining canal, even though they were overseas at the time.
The unfortunate victim, Paul Borland, claimed that as Mr and Mrs Makauskas knew he was likely to do 'silly things', they should have taken steps that would have discouraged him. They should have erected a warning notice, or not have had a fence which was easy to dive from.
But one of the defining characteristics of people who do 'silly things' is their tendency to disregard sensible advice. A danger sign may only incite them to greater foolishness, and even barbed wire on top of a fence may simply be seen as a challenge to be overcome. In the hands of a nifty lawyer, the Makauskases could have been sued no matter what steps they had taken to save Mr Borland from himself.
The verdict may well be overturned on appeal. But it is a worrying indication that efforts by plaintiff lawyers and their academic supporters to chip away at common sense notions of individual responsibility are bearing fruit. Clearly, the jury's decision shows that at least some ordinary Australians are starting to accept that it is legitimate to transfer responsibility for adversity away from those who are directly to blame, and place the liability on others with 'deep pockets'.
I have little doubt that the jury members are good people with humane feelings for someone in a tragic situation. Recognising that Mr Borland will require expensive care for the rest of his life, they probably felt that he did not deserve to be left without financial resources just because of a moment's stupidity. The Makauskases were obviously insured, so they wouldn't even have to meet the bill themselves.
Unfortunately however, such misguided charity has its costs, and these do not just involve higher insurance premiums. It can only encourage more people suffering injuries or ailments to cast around for a 'no win, no fee' lawyer and some plausible person or organisation to sue, however tenuous their responsibility for the actual misfortune. While there is still the disincentive that Australian courts usually require unsuccessful plaintiffs to pay the defendant's legal costs---unlike the situation in America---the message from the Borland decision is that it is becoming easier to win.
Some lawyers would argue that this all for the good, and not just because it means more money for them. As the legal commentator Peter Huber noted in his book Liability, the lawyers of the 1950s and 60s who brought about the horrors of America's current litigation morass by revolutionising the law of torts---or civil wrongs---were acting at least partly out of idealistic motives.
They thought of themselves as helping the 'little guys' who were the hapless victims of accidents or negligence, and making society safer by ensuring that the providers of goods and services would take more care with their products.
That was the theory, but like many well-meaning changes of the past half-century, it hasn't quite turned out that way. Among the social costs of increased litigation are a corrosion of public trust and a decline in communal enterprise, 'because the private right to sue has eclipsed the public power to act and serve'.
True, some hazardous products and practices have been discontinued as a result of tort actions in the United States. But so have many socially beneficial goods and services. Others have become much more expensive---and therefore less available to the 'little guys'---as the costs of litigation take their toll.
One area that has been particularly affected is health care, where it is usually difficult for juries to distinguish between the dangers involved in the original ailment from the risks involved in the treatment, creating marvellous opportunities for entrepreneurial lawyers and their paid expert witnesses.
The litigation explosion has also led to a proliferation of very detailed warnings, both to comply with increasing requirements from governments and insurers, and to forestall every possible basis for legal action. Some of these read as though they have been prepared by satirists.
Last week's New Scientist told of the apparently authentic 'precaution number 7' in the manual for a CD player called the Ultradisc 2000. Purchasers are admonished not to use the Ultradisc 'as a projectile in a catapult or similar hurling mechanism'. Such use 'can cause personal injury as well as damage to the transport mechanism, and will void the warranty'.
But the consequences of this litigation-induced precautionary overkill are less amusing. Information about genuine hazards is often drowned out by the plethora of trivial warnings. Faced by endless danger signs many people turn off and ignore the lot. As Peter Huber points out, 'to warn of everything is to warn of nothing'.
The effect is to make life more dangerous. Which creates even more opportunities for lawyers.