The Speaker of the House of Representatives, Leo McLeay, has had mixed fortune since his bicycle accident at Parliament House on April 25, 1990.
The events that followed certainly caused a lot of public comment, some of it quite misguided. It is an interesting case because it highlights the lottery of seeking damages for personal injuries in Australia.
At first sight the case was bound to cause outrage. It had an essential ingredient that gets up the nose of the ordinary Australian: the appearance of one rule for those in positions of power and another for the ordinary citizen. But that is appearance; the reality is different.
The heavens seem to have conspired against Mr McLeay to make things look worse for him than they really were. It was a bicycle accident. This immediately conjures up amusing images. Bicycle accidents have long been the butt of jokes as summed up by the expression “”as easy as falling off a bike”.
The fact it happened at Parliament House made it worse. Parliament House has been a symbol of resentment throughout the recession: the masses face unemployment while the pollies lap it up in luxury.
Further, if Mr McLeay were to seek compensation for his injuries the case would inevitably require him to sue the Commonwealth, and the department he heads would have to handle the case. It would result in him having technical responsibility for the handling of questions of settlement of his own case.
Things got worse. After the settlement was disclosed, several other people who were injured at Parliament House came out of the woodwork. The damages settlement in Mr McLeay’s case of $65,000 did not compare well to the amounts they had been offered. Further, virtually everyone in the nation saw Mr McLeay on television working away as Speaker a few months after the accident without any visible sign of permanent injury.
To add insult to injury, literally, the Opposition made a meal of it.
At a superficial level, things just looked extremely bad for Mr McLeay. Moreover, any attempt by him to defend himself would just make matters look worse. It is all a question of perception.
Let’s go behind the perception.
It is perhaps best to start with the comparisons with other cases.
Under a heading “”The Bicycle and Parliament. Justice for All”, the Opposition spokesman on communications, Warwick Smith, issued a press release on the case of Mrs Daphne Powell, 76, who fell over at Parliament House sustaining worse injuries than Mr McLeay but was offered only $200. Mr Smith issued a further statement on January 6 highlighting the case of Mrs Sylvia Grey who also fell at Parliament House cracking her skull. She has received no compensation or help with medical bills.
Mr Smith’s statement compared this to “”the Speaker’s own claim which saw a payment to him of $65,000 when he fell of a bicycle.”
Once again, the easy shot using the phrase “”fell off a bicycle.”
The trouble with these comparisons is that they don’t stand up. Superficially they look the same: accident at Parliament House, injury, where’s my money? But the cases are entirely different.
To succeed in getting damages, you have to show someone is at fault and that that fault caused injury. The fault can take several forms: negligence, breach of contract or breach of statutory duty. If you fall over, you don’t get damages just because you happen to be inside Parliament House. You are in the same position as if you fall over in the street or in a shop. You still have to prove fault. Inevitably in falling over cases a large part of the blame lies with the person who fell, though there may be partial fault if a floor is slippery, if a carpet is not nailed down and so on.
Mr McLeay’s case was different. He hired a bicycle which collapsed under him. The people letting out the bicycles had been warned that they could collapse. The liability was an open-and-shut case on at least two counts. There was negligence and there was breach of contract because Mr McLeay paid for the hiring and had a right to expect the goods hired would not collapse. Perhaps there was also a breach of the Trade Practices Act which says that goods hired must be fit for the purpose for which they were hired.
Further comparisons have been made between Mr McLeay’s $65,000 and cases involving similar injuries in NSW. People have pointed to much lower car accident and workers’ compensation pay-outs for similar injuries.
Once again it is apples and pears. Mr McLeay underwent an operation and a hospital stay after breaking his arm. He has permanently lost some movement in his arm and is likely to suffer recurring pain from nerve compression. Those injuries under workers’ compensation would not attract what Mr McLeay got, $51,000 after medical and legal costs. Nor would they attract that amount in NSW in a car accident that was someone else’s fault. NSW law has largely eliminated pain and suffering as a head of damage in car-accident cases.
In general NSW cases are an unfair comparison. The changes in car-accident damages have led to a general environment of lower damages in other personal-injuries cases, too. Mr McLeay’s case was an ACT one to be decided in the ACT Supreme Court. Lawyers faced with determining what would be a reasonable settlement would have to look at it in that context. Around the legal traps opinion suggests that NSW judges are more stingy than at least two of the three ACT resident judges and the Master of the ACT Supreme Court who assessed damages in many cases. That difference arises quite reasonably out of a generally different legal and economic environment in the ACT.
Another fact is that Mr McLeay’s settlement (unlike many workers’ compensation payments) is a once-and-for-all settlement. If later complications arise requiring further operations or even the amputation of the whole arm, Mr McLeay cannot seek further damages. He is on his own.
Legal sources suggest that Mr McLeay’s damages would be at the higher end of the reasonable range for that sort of injury, but that could be because there is an advantage for a defendant getting a quick settlement to avoid later liability. In general, people with a long working life ahead of them wait until injuries have stabilised before settling. People closer to retirement, like Mr McLeay, sometimes prefer earlier settlement because they have less to lose in the future. Mr McLeay has either had a very quick stabilisation of his injuries or he has accepted the risk of later complications.
From the publicly available court documents it seems that Mr McLeay’s case was dealt with very efficiently. He was injured on April 25, 1990. One would expect at least a year to pass to eliminate much of the risk of further complications. He filed his claim with the court on September 30, 1991. The defence by the Commonwealth was filed on October 18, 1991. And settlement was filed on November 28, 1991.
The Australian Government Solicitor says this case was dealt with no differently from any other.
Legal sources say it would be very rare indeed, if ever, to see a case against the Commonwealth involving the AGS go from statement of claim to settlement in under two months. Several lawyers in the personal injury field when told of these dates and the AGS’s assurance that the case was dealt with no differently from others could only applaud what they saw as the AGS’s new-found efficiency.
However, there is no reason why a case cannot be dealt with swiftly, especially if the plaintiff’s lawyer, too, has a well-prepared, fully documented case.
Mr McLeay has come under criticism in Parliament and elsewhere for being seen to be in a position of approving his own settlement. However, Mr McLeay did no more or less than what any other parliamentary employee was entitled to do in the circumstances. And as joint head of the Joint House Department he properly distanced himself from his own case, putting it in the hands of lawyers and not getting himself involved.
None the less, despite these points, people will no doubt still feel (unreasonably) that there has been some special treatment. However, if there has been, it is a question of the law and the system rather than any action taken by Mr McLeay.
In the early 1970s, Gough Whitlam wanted to introduce a no-fault compensation scheme which would have seen all injured Australians get compensation for injury however it arose. However, it was defeated in the Senate. Thus we still have a fault scheme. Injury on its own does not give rise to compensation, you have to have it caused by someone else’s fault. And even then the extent of compensation will vary dramatically according to whose fault, in which state and the category of case. Being injured by a criminal results in a lot lower payment than being injured by a car or at work.
As it happened, Mr McLeay’s injury occurred in circumstances which attract the highest level of damages: it arose out of a breach of contract, with the Commonwealth and in the ACT.
Moreover, Mr McLeay as a man knowledgeable in the affairs of the world quite naturally went to some very good lawyers who used those circumstances to get the best for their client, as the system requires them to do. And got paid $10,000 for doing so.
Within the system, Mr McLeay behaved quite properly. None the less, based on the court documents which are available at the ACT Supreme Court registry and the report of the Joint House Department to the Parliament, a couple of questions about the political wisdom of his action could be asked.
Mr Smith has put the following notice of motion in the House of Representatives: “”That in the discharge of his duties as joint administrator of the Department of the Joint House he did knowingly sign an official report of that department to the Parliament which included an anonymous reference to a public liability compensation settlement to himself without giving any personal explanation to the Parliament. That the Speaker has failed to protect the dignity of the Parliament by consistently seeking to hide the facts surrounding his compensation claim and the subsequent settlement from the Parliament and people of Australia.”
One could perhaps suggest that a better course for Mr McLeay would have been to seek only medical costs and out-of-pocket expenses and to announce it at the time. It would have been a generous thing to do and would have required him to forsake his otherwise just entitlements, but it would have avoided some of the comparisons with other cases that have arisen. And those comparisons, no matter how unjustified, have still left an adverse perception behind. One that Mr McLeay and his party could have done without.