As a
child, I watched on television hidden camera footage of a woman pouring oil
over steps, then repeatedly walking up and down them in a deliberate attempt to
slip and sue for compensation.
In
early 2010, Glen Hanncock was compensated $300,000 after becoming paraplegic in
a work-related injury. In late 2010, Kristy Fraser-Kirk was
compensated $850,000 after being sexually harassed on 2 occasions at
work.
I do
not speak for all, but forced to choose, I would much rather be odiously groped
and harassed on 20 occasions than become incurably paraplegic, even if I am not
compensated the extrapolatable $8.5 million. If I could cure someone's
paraplegia by groping and harassing them on 20 occasions, it would be a medical
miracle.
In tort
law, the principle of plaintiff remedy should be restorative,
compensating wrongful losses and restituting wrongful gains. There should not
arise a situation where the plaintiff makes a net utility profit and is glad to
have been "torted." However, punitive damages (ie,
in excess of the wrongs incurred) are justified, lest people commit calculated torts knowing they gain more than damages they'll need to pay
(for the same reason, I do not support proposals to cap punitive damages). The principle of punitive damages should be future public interest rather
than rewarding the plaintiff.
▪ I
dream of a world where punitive damages are not awarded to the plaintiff
but rather, eg, a charity organisation independently appointed or mutually
agreed upon
One
problem with such a world is that plaintiffs can still make net utility profits
at the expense of future public interest through out-of-court settlements
(Kristy Fraser-Kirk threatened $37 million in punitive damages to charity and
settled for $850,000 to her own pocket).
▪ I
dream of a world where manifestly unjust out-of-court agreements risk legal
action, just as in the real world how manifestly inappropriate sentences can be
appealed and illegal agreements can be ruled unenforceable
Litigation
is ideally the last resort after out-of-court agreements have been exhausted,
lest the court system become further clogged. While limitations to such
agreements may create additional burden upon the courts, this may be offset by
a reduction in opportunistic and profiteering lawsuits. Another problem is
that plaintiffs may rarely pursue punitive damages at all due to minimal
incentives. Awarding the plaintiff a nominal share of the punitive damages may
only be a partial remedy.
Ultimately,
the onus and reward of a public interest matter should be taken out of the
hands of a private litigant in the first place. This is the case in another
field where public interest is the underlying principle; criminal law.
▪ I
dream of a world where the primary onus of punitive damages falls not on the
plaintiff but on a state office akin to a public prosecutor
One
sesquicentury ago, the military hegemony of the British Empire exported a
pernicious produce in opium. Today, the cultural hegemony of the USA exports a
pernicious produce in its legal practices.
