Money Justice: Revenge or recompense?

23 minutes

Contributors

Kathleen Daly

Professor of Criminology, School of Criminology and Criminal Justice

EPISODE SYNOPSIS:

Can money right a wrong? How hard is it on victims going through the court system seeking money justice? In this episode, Turia Pitt talks frankly about why she pursued a financial settlement; Professor Kathleen Daly explains money justice and its roots; and lawyer Josh Bornstein gives an insider’s perspective on the road he’s seen victims travel in their quest for money recompense.

Ginger Gorman:

Do you remember when we all began talking about what a litigious society America had become? It was the 1990s and stories of supposedly frivolous lawsuits satisfy people’s need to feel outraged, kind of in the same way that stories of supposedly frivolous canceled culture do today. One of the cases from 1994 that captured global attention was liebeck versus McDonald’s restaurants. Do you remember? A woman sued Maccas in America because their hot coffee was too hot? sounds ridiculous, right? And she won. What a gold digger.

So here’s what really happened. 79-year-old widow Stella Liebeck was sitting in the passenger seat of a parked car, holding a cup of McDonald’s takeaway coffee between her legs while she added milk and sugar. Not the smartest move, and seller accepted that this bill was her fault. But the temperature of the coffee was between 82 and 88 degrees Celsius. She had third degree burns to her legs and genitals. And her medical costs for eight days in hospital, skin grafts and ongoing care came in at around 20,000 US dollars.

And the thing is McDonald’s knew that their coffee was too hot. They had received around 700 complaints in the previous ten years from customers who had also been burned by the scalding coffee. Okay, so now you know the facts. How much, if anything, should Maccas have paid Stella as compensation?

She asked them to cover her medical costs. They then offered her $800, so it went to court and a jury found Maccas responsible and ordered them to pay $2.7 million. In the end a judge reduced the award to $640,000 and the party settled out of court during appeal.

But what made this American jury decide McDonald’s should pay millions of dollars for making scalding hot coffee? The answer is justice.

This is Seriously Social. I’m Ginger Gorman. And in this episode, we’ll look at the role that money plays in delivering justice. Does it repair damages? Does it help prevent future harm? And when you’ve been wronged how does it feel to make someone pay?

So what is the point of money justice?

03:44 – Turia Pitt

There’s no amount of money in the world that’s going to change what happened. There’s no amount of money in the world that’s going to give you my fingers back and help me to open a jar. So, I think for us, it was about reparations and trying to get some kind of justice.

04:04 – Ginger Gorman

That’s a voice many Australians may recognise. Turia Pitt. Turia’s story became widely known a decade ago when in 2011, the former mining engineer was living what she said was her dream life in the Australian outback.

While she was competing in an ultra-marathon she was caught in a grassfire. Turia was choppered out of the remote desert barely alive with burns to 65% of her body. She lost seven fingers, had over 200 medical procedures and spent a couple of tough years in recovery. Her achievements since then have been pretty remarkable. She’s written bestsellers, coached 1000s of people become a parent to two sons and cross the finish line at the Iron Man World Championships. But before all this, behind the scenes, there was a long challenging court process to get through.

05:02 – Turia Pitt

At the end of the day, we settled out of court. I wasn’t happy with the money, but then no amount of money would ever be able to compensate me for what I’d been through.

And I understood that.

For us, you know, there was an inquiry in WA into the race where I was injured. And so, for me, personally, I wanted to be vindicated. I wanted someone to admit that they were in the wrong and that never happened because we settled out of court.

I think I found the whole process, exhausting, frustrating, hurtful, tiring, all of those things.

And I was really, really lucky that I have an amazing partner who was so supportive during that whole time, but even, people have their limits. It’s a hard process, and I wouldn’t wish it on anyone.

Michael, my partner he was like: “I just want to take it because I want us to be able to move on with our lives.  It’s just holding us back.”

I thought about what he said, and I think he was quite wise really: once we settled out of court it, for me it was freeing, was like a burden had lifted off our shoulders.  We were able to move on with our lives, Michael could go back to work, and we could go on a holiday and all that sort of stuff.

06:03 – Professor Daly

One reason I’m interested in money justice is I want to break through this secrecy, particularly in civil justice settlements. I’m also interested to know more generally, what amounts of money people do receive after wrongs and the degree to which there are inequalities in payments.

That’s Kathleen Daly. She’s Professor of Criminology and Criminal justice at Griffith University, and a Fellow of the Academy of the Social Sciences in Australia.

Kathleen talks about the money justice paradox, that money is used all the time as justice to victims after wrongs. But she says most victims also say that money can never compensate or make up for what was lost. So if that’s the case, why is money sought by victims and offered as justice?

06:49 – Professor Daly

Thousands and thousands of years ago, the relationship between revenge and recompense was closely tied. That is, the pain suffered by a victim was recompensed by an equivalent, painful loss to an offender.

Ginger Gorman:

In other words, an eye for an eye and a tooth for a tooth.

Professor Daly:

Today that nexus no longer exists, and the meaning of justice as balance is lost. That’s another reason I think fat money fails as justice to victims because it doesn’t have  – it’s not associated with an equivalent painful loss to offenders.

07:37 – Ginger Gorman

Kathleen says that there are three things to consider when it comes to the money justice paradox.

07:43  – Professor Daly

The first and probably the most important is money is offered to victims because it’s all that legal systems, and importantly, legal systems supported by insurance – money is all the law can provide.

08:00 – Ginger Gorman

Secondly, victims seek justice to reveal the truth of what happened to hold those responsible to account to try to prevent it from happening again.

08:12 – Professor Daly

The problem is that civil justice is set up to give out money. They can’t really achieve these other aims. So what the victims do? They fall back and what they can receive, which is money, although they fall back, struggling, I have to say because they do want to achieve these other objectives when they’re seeking justice. And the third thing to bear in mind is that victims’s legal representatives are motivated to focus on money, because it’s support their livelihood. Civil justice and insurance are bound by money and calculations of risk.

08:51 – Ginger Gorman

Lawyer Josh Bornstein acknowledges that in a civil justice system, money is pretty much the only language for redress. But he doesn’t accept that his motivation comes from dollar signs.

09:04 – Josh Bornstein

Often, when I speak with someone for the first time, who’s had an horrific experience, I have to try and manage my emotion. And that’s not because I’m excited about making lots of money, it’s because I’m angry or upset at what they’ve experienced.

And in a sense, the die in my case was cast when I was about five years old when my parents told me you got to stand up to bullies and stand up for the underdog, right?

09:30 – Ginger Gorman

Josh doesn’t have a solution for the money justice paradox that concerns experts like Kathleen

09:37 – Josh Bornstein

When you suffer an horrific injury or trauma there’s a real question whether anything can replace that. If it’s not money, what is it that will replace what you had? No one really has the answer to that I don’t think so. The legal system focuses on financial compensation and I agree; it’s not a panacea, it’s not going to replace what was lost. And it’s often the case that people afterwards still acknowledge that it hasn’t cured all their ills.

But at the same time, there is a good proportion of people I deal with, who seek financial compensation because it speaks to some recognition of their experience, of the harm that’s caused to them which is really important. And it’s a recognition that has some value in our society.

10:37 – Ginger Gorman

Under Australia’s civil justice system, we’re unlikely to ever see millions of dollars awarded to someone like Stella Liebeck, the American woman who spilled scalding coffee on her lap, because we just don’t have the same options for claiming punitive damages here.

10:53 – Josh Bornstein

When courts do make awards of very significant damages often, it’s because there is some catastrophic loss. You have categories of damages, primarily an economic category, economic loss, and then you have non-economic loss, which often looks at injury, harm, and so on that isn’t an economic harm.

So it’s only in cases where you’ve lost income and income earning capacity in the future, very substantially, that you’ll get awards or damages in the millions of dollars or settlements in the millions of dollars.

In a case, involving a young person who’s unable to work in their profession for the rest of their life because of some catastrophic, illegal event, then you may find yourself in that sort of realm.

It’s not punitive, you don’t get in this country awards of damages in that sort of stratosphere that are punitive, that are compensate for loss.

12:03 – Ginger Gorman

And Josh says that there are plenty of clients not motivated by money. But that can ring alarm bells for lawyers like him.

12:11 – Josh Bernstein

I’m often weary when someone says it’s not the money, it’s justice, or some other noble ideal because it often doesn’t play out as the case goes on.

But there are some people who their ideal is, or their objective is more idealistic or aspirational. And that can be very difficult. Because if you’re a whistleblower in the tax office, or at a mining company, and you think “I’m going to change the world by my whistleblowing”, well history tells us that’s very rarely the case.

One court case often doesn’t make or one claim doesn’t make any significant, substantive change, which is a limitation of what I do.

On the other hand, occasionally, but these are sort of black swans, if you like, occasionally, when I represented Julia Szlakowski, who was sexually harassed while working at AMP. When she involved me and we went public, that in fact has had a catastrophic impact for the company and has led to major change in the company: board members gone, staff gone management, new management, share price collapses, investment plans collapse.

That’s a very unusual and significant change.

13:38 – Ginger Gorman

Josh says he always tries to warn his clients about the challenges of making a legal claim: the accusations, the traumas, relived, the disappointments.

13:49 – Josh Bornstein

So that’s the first conversation that I have with everybody. It’s usually because I’m dealing with someone who’s already traumatized, and they’re seeing a lawyer whose job involves an adversarial, system where you’re going to get defendants and their lawyers with deep pockets, challenging everything you say, trying to discredit you.

And that can go on for a long time – that can go on for years in the legal system. So that can often be disastrous for someone with precarious health, who’s still stuck in the legal system years down the track.

Now, I try and practice in such a way that doesn’t occur, but I cannot guarantee exactly how defendants respond. All I can do is try and influence the players in the system to ensure that we resolve it as soon as possible with my client’s health and dignity intact. But that’s something I spend a good part of the first discussion I have with each client: “How we’re going to deal with health. During this time, if you’re going to have me and my colleagues working with you, you’re also going to need a medical support team – that’s more important than me. And we’re only going to do this if it’s going to be okay with your [inaudible], and that you’re going to follow their advice and make sure that you spend as much time focusing on your legal cases as managing your health.”

15:19 – Ginger Gorman

Of course, the law is not chiseled into stone. Legislators have the power to change it, and so do judges by actually setting legal precedents. And it’s lawyers’ arguments that influence those precedents. But that also comes at a cost to the claimants. So does Josh worry that the system is broken?

15:39 – Josh Bornstein

If I didn’t think there was some good in it, I wouldn’t be doing it. If I thought it was broken, I wouldn’t do it. I don’t think it’s completely broken. But you do get cases, and you do get lawyers who will say “I want to test the law and I’m going to recommend and lean on my client to test the law [even] if it takes five years and appeals and so on and so forth.”

I worry about that situation greatly. They may be doing us a collective service by making new law, but are worried about the individual cost borne by the client.

And you do get terrible outcomes that happen: not everybody gets a good outcome. So there’s not a neat answer to whether the system is broken.

I wonder whether I would have so much business if people apologised?

You know, doctors who stuff up never admit it. Lawyers who stuff up, never admit it. Because lawyers like me are supposed to be infallible, never make mistakes. The reality of course is completely different. And it’s the same in the workplace. There are so many stuff ups in managing sexual harassment, bullying, misconduct, sackings, workplace investigations.

If people were honest, and expressed sorrow and regret and recognized the harm they caused, and tried to rectify it, I think I would have a much smaller practice.

17:15 – Ginger Gorman

Speaking of apologies, there are other forms of address and money that can help victims.

17:21 – Professor Daly

Truth commissions, memorialization, the return of property, and apologies. All of these have great significance.

17:31 – Ginger Gorman

In a study on state funded Victims of Crime compensation schemes that offered payment to victims of sexual assault, Kathleen’s team found that most victims applied for the payment for financial reasons. But they felt uncomfortable in the process.

17:49 – Profesor Daly

They were actually quite concerned. They didn’t want appear to be money grubbing. They justified applying for it because they needed the money. But after they received the payment, half said that the money was public recognition for what had happened to them; that what had happened to them was wrong. So in other words, the money was (after they received it) a symbolic form of justice, even though that wasn’t the reason they applied for it.

18:20 – Ginger Gorman

But in another study of victims suing the Catholic Church for clerical child sexual abuse Kathleen said that study found that victims thought their lawyers were focusing far too much on money, when what they really wanted was for the truth of the abuse to be made public.

18:38 – Professor Daly

As it turned out for them when it came to the end and the settlement outcomes were being discussed and negotiated money had a little meaning as justice because it was incommensurate with what happened to them: it didn’t equate to what happened to them. And further, when they compared the amount that they received with those other victims received, it also seemed to be out of whack. There was just a problem of incommensurability, both in an absolute sense and in a comparative sense.

Ginger Gorman: So what can financial compensation do for victims?

Professor Daly:

Money has redeeming qualities and practical benefits. It can buy household items. It can be saved for the future. It can pay bills, it can be given to others, it can relieve financial stress, it can pay for medical and dental care. It can make your life a bit more pleasant.

19:38 – Ginger Gorman

Has that been the case for Turia Pitt? She told me finally settling the case and getting some form of justice, albeit confidential, did help.

Turia Pitt:

…Because we weren’t always revisiting that traumatic event. We weren’t always receiving letters, or statements or things from the other side. We weren’t always sprinkled in and questioned as to why our freezer bills were so high. We didn’t have any of that anymore. So for us, that was really healing. And it did help us look towards the future, rather than looking at the past.

I think it can be helpful to revisit the past for sure. But sometimes if you just stuck there, and that goes on for years and years, I don’t think that’s going to be really helpful for anyone.

I don’t know if I would ever encourage a victim to be like “you should go try and get money justice, because it is a really taxing journey”. But for me, it was freeing because once we reached a settlement we could look towards the future and not be stuck in our past anymore.  So even though it was taxing, exhausting, all of those things for us. I think it helped us on our journey.

20:58

Thanks for listening to Seriously Social. I’m Ginger Gorman. if you enjoyed this episode and you’d like to hear more from Turia why not check out her interview with Academy fellow and Federal MP Andrew Leigh on his pod “The Good Life”. And while you’re at it, you could revisit our interview with Andrew on connected communities in Season 3 of Seriously Social.

Don’t forget that Social Sciences Week runs from September 6 to 12 and there’ll be loads of events held across the country and online. Head to socialsciencesweek.org.au to find out more and get involved.

Seriously Social is produced by Kim Lester, engineered by Mark Gargledonk aka Baldey, and Executive Produced by Sue White and Bonnie Johnson. It’s an initiative of the Academy of the Social Sciences in Australia. Next time, navigating the world of online dating can be tough. But is it changing relationship

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