Do litigation lawyers really prevent occupational injury?
The strong influence of litigation lawyers in the affairs of labour unions and in matters of workers' compensation in the Anglo-Celtic world represents a structural and cultural trait, which is puzzling to anyone with a continental European background used to social insurance and comprehensive solutions.
It is, of course, cheaper and more fair for society to pay reasonable compensation to injured workers through a no-fault system. Everyone with the same degree of impairment and loss should be entitled to the same amount of compensation independent of lawyers, courts and proof of negligence. Speedy rehabilitation and return to work should not be hampered by lengthy litigation and victims having to maintain, rather than rehabilitate, their injured conditions.
But a no-fault system rests on the assumption that there exists an area of consensus, albeit a limited one, between employer and employee in matters of safety and compensation, and that the industrial parties and the government of the day are committed to defending a fair system.
In societies where this is not the case, and where the traditional conflict between workers and bosses is perpetuated by strong advocates on both sides of the political fence, the litigation lawyer plays the role of the handsomely paid ritual expert; forever fanning the smokescreen of the exceptional individual case, eagerly defending the principles of tort.
The litigation lawyer will, when questioned, bombastically portray the legal profession as the last bastion of workers' rights; the only real barrier between the worker and negligent employers, exploitation and blood on the floor!
For the industrial safety professional this is a somewhat quaint perspective on the reality of industrial safety. It is, in fact, hard for anyone to see how lawyers could have an objective interest in efficiently preventing occupational trauma, since such success obviously would reduce their market, diminish their earnings and threaten their profits.
It is estimated that legal proceedings in association with occupational injury cost 675 million dollars in Australia in the fiscal year 1991/92. In one of the schemes, the Victorian, the legal costs represented around 10% of the total payments of 726 million dollars in 1995/96. Lottery justice does not come cheap!
How is it that countries where industrial safety and decent working environment have been developed to high safety levels (Germany, Holland, Scandinavia to name a few) have managed to do this without the guys in wigs? Is there perhaps some further aspects to industrial safety development besides legal conflict and litigation?
Historically, successful high-quality export-driven industrial manufacturing, together with strong and well organised labour unions and employer organisations, have resulted in high wage levels, low unemployment, and good working environment and occupational safety - particularly in countries with some form of social contract and areas of social consensus.
Industrial development, in these countries, has also made employers increasingly dependent upon the skills of their operators, supervisors and technical specialists, and thus made society dependent upon retaining high quality standards in secondary and tertiary educational institutions.
Labour unions have embraced development, stopped their demarcation battles, amalgamated, and broadened their defined area of interest and responsibility to include the general life and well-being of their members.
The internationally competitive manufacturing industry in these countries has had implications for the very fabric of society. The 8-hour perspective on life is not enough; developing excellence (this violated and over-jargonized term) requires a 24-hour perspective. It requires society to view workers as complete human beings, not simply as manpower add-ons to machinery. If high quality in value-added manufacturing requires independent and intelligent operators, this inevitably spills over into the attitudes and values of social life outside the workplace.
If, on the other hand, the main strategical focus of the industrial relations parties is made up of hostile industrial conflict, a stubborn defense of present conditions and the view that any retreat can only be ameliorated by pecuniary compensation, there will be no progress in social terms flowing on from successfully growing industrial sectors, there will be very limited prospects of lifting the proportion of value-added manufacturing in net export terms, and there will be a continued stagnation in terms of skills, creativity and productivity in industry.
Michael Crichton, in an essay on the Japanese take-over of the US electronics industry (dressed up as a grisly but cinematic crime fiction named "Rising Sun"), lets one of the characters in the book express a pertinent observation on the US - Japanese comparison:
"America may lack engineers and scientist, but we lead the world in the production of lawyers." ..."We have four percent of the world population. We have eighteen percent of the world economy. But we have fifty percent of the lawyers. And thirty-five thousand more every year, pouring out of the schools. That's were our productivity's directed. That's where our national focus is. Half our TV shows are about lawyers. America has become Land of the Lawyers. Everybody suing. Everybody disputing. Everybody in court. After all, three quarters of a million American lawyers have to do something. They have to make their three hundred thousand a year. Other countries think we're crazy."
(Crichton, M: "Rising Sun". Arrow Books, London 1992)
A reasonable target for the safety fraternity and for the national associations of safety scientists and professionals would be to lobby for at least as many safety science students in tertiary education as there are students of law.
That would help shift the perspective from extracting damages when the damage is done to preventing the damage being done in the first place!
Tore J Larsson