ASSIGNMENT

Assignment

Assignment

Introduction

On August 7th 1994, 11 miners were killed when an explosion ripped through the BHP-owned Number 2 Mine in Moura, Central Queensland . In a bitter attack the Workers News declared that 'these deaths were not an unexpected accident, but a direct result of BHP's drive to boost productivity and cut costs. They form part of the disastrous death toll now escalating through industry' .

This paper seeks to determine what role the law relating to damages for injury and death plays in allowing commercial interests to consider life and health as an exploitable resource in the pursuit of profits. The argument will be presented that the law is not neutral between commercial and personal interests, but is in fact indefensibly favourable to the commercial interests of profit, over the personal interests of life, health and happiness.

Regrettably, it is often the case that arguments such as the one presented in this paper usually break down into two isolated schools of thought, economics and sociology, with each discipline ignoring the insights of the other. Economists, although bitterly divided, share at least some paradigmatic assumptions with other economists, and the same is true of sociologists. Yet as a result of what Edward de Bono termed the 'arrogance of logic' , each discipline sets up logically impeccable arguments that are derived from within a particular framework of perception and are literally incapable of being challenged from any external framework of perception. This paper will attempt to provide a critique of the law of remedies that will transcend the particularity of specific disciplines by arguing that damages for personal injury and death are indefensibly favourable to commercial interests, both from an economic point of view and a sociological point of view. Although the economic argument will initially be presented separately from the sociological argument, an attempt will be made to transcend de Bono's 'arrogance of logic' by arriving at a conclusion that will bring together the insights of both economics and sociology in a singular framework.

The Argument from Economics

Proponents of the Law and Economics movement argue that the touchstone of legal decision-making should be the promotion of allocative efficiency in society . Although it is widely stated as a common law principle that the purpose of damages for personal injury and death is 'compensation' , law and economics scholars would argue that 'compensation' is in fact achieved by setting damages at the 'efficient' level .

But just what constitutes the 'efficient' level of compensation is the source of the fiercest in-fighting amongst economists. Law and economics scholars start with the traditional definition of 'efficiency' provided by welfare economists and purport to uncover serious flaws with that definition. In its place they impose a viciously conservative definition of 'efficiency' that is fatally flawed and fundamentally fails to provide any effective critique of traditional welfare-economics. Assuming (as I do in this section of the paper) that economic theory may provide us with the 'proper' level of compensation, that 'proper' level is provided by Welfare-economics and not the economics of ...