On the door of every commercial squash court in Canberra you will find a sign: “”Protective eye wear is compulsory for juniors and doubles and highly recommended for others”. But most people go on court without eyewear or mouth guards. They don’t like the fogging up, the restriction or the incapacity to talk. Or they don’t think it will happen to them. Therein lies the difficulty for society and the courts. It came to a head this week in the High Court over a case in which a man lost an eye playing indoor cricket. At one of the sports complexes where I play squash they also play indoor cricket. The ball is much harder than a squash ball with more players per square metre of playing surface. I think you would be a mug to play indoor cricket full-stop, certainly you should wear a helmet, but most seem to play without. And there’s the rub. How do you get people to look after themselves? To what extent should you protect people from their own stupidity, ignorance, bravado or calculated acceptance of a risk? And who should bear the loss? These questions do not have easy answers, and their implications have been running through the public-liability debate in recent weeks. The High Court divided – three judges (Gleeson, Hayne and Callinan) to two (McHugh and Kirby). Those who found against the injured player argued that the risk was obvious so there was no need to warn or provide helmets. Those who found for him cited injury statistics — $2.6 billion a year cost; 228,800 people with a sport or recreation-relation injury and an annual average of two indoor cricketers a year losing an eye. It was not reasonable to provide commercial indoor cricket at this cost when it could be prevented by the provision of helmets. But majority judge Ian Callinan countered that a cost-benefit analysis might reveal that the benefit of sport outweighs the cost of caring for people injured by sport, so using statistics was dangerous. The minority says make organisers pay damages for injury and they will improve safety for the betterment of all, but the judicial tide is turning for people to take care of themselves. But there is no guarantee of better safety either way. People do not look after themselves unless forced. Also, even with the threat of damages being awarded, sports providers and others who organise charity and community events can insure or just bear the risk without improving safety. At least until now when insurance has become too expensive. But one thing is for sure, at the fringe areas we do not go about deciding liability very well. The indoor cricket case took six years to resolve through the courts. The man has not only lost his eye, but lost god know how much in legal costs. If he had won, his damages were assessed at $127,000, but as is typical in our legal system the legal bills quickly outstrip the amount at stake. The judges or legislature would do a great service if they insisted on publication of the amount of costs. The lawyers for each side should be required to put in an estimate of costs after case is heard and before judgment is brought down and the amount should be published. The environment for the injured is not looking good. The judicial tide is turning; legal costs and delay seem intractable; the insurance industry seems determined to increase premiums to make up for past losses or to discourage little non-profit clients and the public hospital and welfare systems are tougher. Perhaps threatening the injured is a better way of improving safety than hitting the injurer with damages, and that in this poor environment for the injured, people will look after themselves better by behaving more safely and taking out their own insurance against catastrophe. If so, it is a pretty brutal way of going about it.
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