The law is

24 Dec, 2001 10:00 PM

WHEN Charles Dickens' Mr Bumble was told by a judge that the law presumed that a wife was under her husband's control, he responded: "If the law supposes that, the law is a ass."

A recent strange decision to come from a court of law concerned a damages claim from a dockworker who was traumatised by threats from a picket line during the 1998 waterfront dispute.

He was employed by a company whose directors included the (then) president and CEO of NFF, as well as a previous industrial director of NFF, with their stevedores working for a shipping company, Patrick's.

Although the courts made some very strange decisions at that time, seeming to bend over backwards to assist the waterfront unions, the end result was vastly improved efficiency on the waterfront.

The man at the centre of the current legal case, Francis Vaughan, was the boss of the company's Sydney operations and the court found that he had suffered post-traumatic stress disorders after crossing a picket line.

The NSW Supreme Court found that Patrick's had acted properly when Vaughan had crossed the picket line in a bus, but when he walked through the pickets with only one policeman to protect him, they were negligent.

I have no doubt that all of the crossings of the picket line were traumatic, particularly when a picketer screamed at him "we know where your grandson lives. He might not get home."

It also seems quite believable that the events caused long-term damage to the claimant, but I cannot understand how it is the employer's fault when Vaughan was threatened by "balaclava clad workmen with baseball bats."

Rational people, like Mr Bumble, would claim that the damage to Mr Vaughan was done by the picketers, the ones who came complete with balaclavas and baseball bats and who threatened his grandson.

These same rational people would have assumed that a man who had his health destroyed and his future employment prospects damaged would have sued the people who caused the damage, namely the union picket.

The entire claim and damages awarded reflect the current legal thinking, that if anything happens to a worker on a work site, then the employer must be liable because a safe work environment is required by law.

The attitude to court litigation is now akin to a form of lottery, with the costs of the prizes coming from all the customers of the company being sued, while a substantial percentage of the winnings go towards "legal costs."

Yet even in this dog-eat-dog world of legal damages, victims and winners, a certain kind of logic still exists, because the party who suffered the hurt normally sues the party who caused the "damage."

If the current damages case on the waterfront turns into a precedent, we will see the drivers of damaged cars suing, not the driver of the car that ran into them, but their employers.

The law is still a ass.

(NB. Dickens said "a ass," not "an ass.")



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