Reality

Early year law and justice studies students would benefit from reading the short 'Uses and abuses of crime statistics' (NSW Bureau of Crime Statistics and Research) [PDF] by Don Weatherburn

Weatherburn, with understandable exasperation, comments that "Large sections of the media habitually distort, misrepresent and exaggerate the facts on crime". He goes on to note that -

Between 2000 and 2009, the Australian national murder rate fell by 39 per cent, the national robbery rate fell by 43 per cent, the national burglary rate fell by 55 per cent, the national motor vehicle theft rate fell by 62 per cent and all forms of other theft fell by 39 per cent. Australia is now into its 11th straight year of falling or stable crime rates. Property crime rates in some States are lower than they’ve been in more than 20 years. You might think this a cause for celebration but the vast majority of Australians still think crime is going up. The reason for this is fairly clear. Most people get their information about crime from the media—and large sections of the media habitually distort, misrepresent and exaggerate the facts on crime.

The abuse of crime statistics is so common it has in some quarters engendered great skepticism about them. The saying there are ‘lies, damned lies and statistics’ is probably nowhere more frequently uttered than in the context of crime statistics. Yet whether we like them or not, crime statistics are here to stay. We have to make judgments about the prevalence of crime, about trends in crime, about the distribution of crime and about the impact of Government efforts to prevent and control crime. We cannot base these judgments on personal experience and anecdote. They have to be based on statistical information. The challenge facing those who produce and use crime statistics is how to do so in a way which is not misleading and which helps rather than hinders our understanding of crime. This bulletin is designed to help those unfamiliar with crime statistics to understand their uses and abuses.

Crunching Breaches

'Empirical Analysis of Data Breach Litigation', a paper by Sasha Romanosky, David A. Hoffman & Alessandro Acquisti for the 39th Telecommunications Policy Research Conference (TPRC) 2011, comments that -

Legal privacy scholarship typically emphasizes the various ways that plaintiffs fail when bringing legal actions against entities when their personal information is lost or stolen. However this scholarship often considers only a small set of published judicial opinions from large-scale data breaches. And so, little is actually known about the characteristics and disposition of a representative set of data breach lawsuits.

Using a unique sample of anually-collected data from Westlaw and PACER, we analyze the court dockets of over 200 federal data breach lawsuits from 1998 to 2011, making this, to our knowledge, the first empirical examination of data breach litigation. We use discrete outcome regression models to estimate the probability that a data breach will result in a lawsuit, and the probability that, once filed, the case will reach settlement. We find that breaches resulting from the unauthorized disclosure or disposal of personal information are 6.9% more likely to result in lawsuit, relative to breaches caused by lost or stolen hardware, whereas breaches caused by cyber-attack are only 2.9% more likely to result in lawsuit.

These results suggest that plaintiffs respond more to the careless or negligent handling by a firm of their personal information, than to the firm’s inability to withstand a cyber-attack or misfortune of losing a laptop. However, while these properties may explain the probability of lawsuit, we find that breach characteristics (size, cause and types of information lost) do not significantly predict the outcome of a data breach lawsuit. Instead, the probability of settlement appears to be driven by the presence of actual financial loss, and class certification.

The authors conclude that -

The proliferation of data breach disclosure laws has heightened awareness of data breaches and catalyzed a flurry of lawsuits by alleged victims of identity theft. These disputes have arisen from the vigorous debate surrounding the use, and dissemination of personally identifiable consumer information. On one hand, collection of both public and private consumer information spawns innovation and reduces consumer costs. For example, data aggregators such as Choicepoint provide valuable services both to retail consumers (facilitating low-cost insurance premiums and lending rates) and corporate or government entities (employee background checks, assisting law enforcement, etc.). On the other hand, consumer advocates argue that the aggregation and storage of this personal information pose great risk to consumers, and its inadvertent or negligent disclosure can lead to many forms of identity theft, fraud, and abuse.

While most legal scholarship has highlighted the difficulties that plaintiffs face when bringing lawsuits because of these data breaches, to our knowledge, there has been no empirical research that has systematically and rigorously examined these suits. Using a hand-collected dataset of over 200 lawsuits, we provide a first-ever empirical analysis of federal data breach litigation in the United States. Our results suggest that individuals are more likely to file suit when the breached is caused by careless or negligent disclosure of personal information, relative to lost or stolen hardware. We also find that disclosure of financial information, though not social security numbers, also significantly increases the probability of suit. Moreover, while these characteristics of the breach (size, cause, types of information lost) were found to be strong predictors of the probability of lawsuit, they were not found to be significantly correlated with the outcome of the suit. Instead, specific instances of identity theft or fraud, class certification and multi-suit litigation were each found to significantly increase the probability that a data breach lawsuit would result in settlement.

The unconditional probability that any given data breach will result in a lawsuit is very small, 5.5%. Nevertheless, conditional on being filed, lawsuits settle almost twice as often as they are dismissed (51% versus 27%, respectively). While this result is still somewhat lower than current literature would predict (Eisenberg and Lanvers; 2009, table 4), it represents a novel insight because legal scholarship typically only emphasizes the failures of data breach claims. However, despite the large proportion of settled cases, the overall probability that any given data breach will settle is still only around 3%. Defendants, however, are surely not immune to the threat and expense of litigation: public actions brought by government entities are very successful, and legal fees can reach millions of dollars.

But is litigation the proper solution? Recall how we identified 86 unique causes of action alleged by plaintiffs for essentially the same event: the unauthorized disclosure of personal information. Does this huge diversity suggest that the current legal system is ill-equipped to efficiently resolve modern data breach harms? Does it expose the limitations of common law and statutory claims brought by individuals seeking redress from data breaches and resulting harms, be they actual, emotional, or anticipated harm?

In an attempt to address these questions, the US Department of Commerce (Department of Commerce, 2010) the Federal Trade Commission (FTC, 2010) have each crafted guidelines for a comprehensive privacy framework identifying best practices for the collection, use and protection of personal information. In particular, the Department of Commerce specifically asks, “should baseline commercial data privacy legislation include a private right of action?” (Department of Commerce, 2010, 30). That is, what role should a private right of action have in redressing harms from privacy intrusions? The outcome of such a proposal, presumably, would allow private individuals to bring legal actions, and obtain redress, for a firm’s mere violation of new data protection or consumer privacy statute. However, the tensions generated by such a proposal are grueling: on one hand, the threat of private class-action litigation may be necessary in order to induce firms to protect personal information, especially in light of the limited resources of public enforcement agencies such as the FTC, SEC, state attorneys general. On the other hand, such a liability regime could impose socially excessive costs on firms as a result of potentially massive damage awards and legal fees.

First Peoples

The Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples has presented its 303 page final report [PDF] to the Australian Government.

The Panel was appointed by the Government in December 2010. It was tasked with "leading a broad national consultation program to seek views from across the Australian community about ideas for recognising Indigenous people in our nation's Constitution". In formulating its recommendations it adopted four principles to guide its assessment of proposals for constitutional recognition of Aboriginal and Torres Strait Islander peoples, namely that each proposal must:

• contribute to a more unified and reconciled nation;
• be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples;
• be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums; and
• be technically and legally sound.

The report states that -

Current multiparty support has created a historic opportunity to recognise Aboriginal and Torres Strait Islander peoples as the first peoples of Australia, to affirm their full and equal citizenship, and to remove the last vestiges of racial discrimination from the Constitution.

The Panel accordingly makes several recommendations for changes to the Constitution, which would be achieved through a constitutional referendum.

The Panel recommends that section 25 of the Constitution, be repealed. That section, dealing with the House of Representatives, states that -

... if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of the race resident in that State shall not be counted.

The Panel also recommends that section 51(xxvi) be repealed. That section deals with the powers of the Parliament. It reads -

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... The people of any race, for whom it is deemed necessary to make special laws

Alongside those repeals a new ‘section 51A’ should be inserted. The Panel recommends that the section be along the following lines:

Section 51A Recognition of Aboriginal and Torres Strait Islander peoples

Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples;

Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters;

Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

Acknowledging the need to secure the advancement of Aboriginal and Torres Strait Islander peoples;

the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

The Panel further recommends that the repeal of section 51(xxvi) and the insertion of the new ‘section 51A’ be proposed together.

A new ‘section 116A’ should be inserted, along the following lines:

Section 116A Prohibition of racial discrimination

(1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin.

(2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group.

Additionally, a new ‘section 127A’ be inserted, along the following lines:

Section 127A Recognition of languages

(1) The national language of the Commonwealth of Australia is English.

(2) The Aboriginal and Torres Strait Islander languages are the original Australian languages, a part of our national heritage.

The Panel makes recommendations on the process for the referendum

a. In the interests of simplicity, there should be a single referendum question in relation to the package of proposals on constitutional recognition of Aboriginal and Torres Strait Islander peoples set out in the draft Bill (Chapter 11).

b. Before making a decision to proceed to a referendum, the Government should consult with the Opposition, the Greens and the independent members of Parliament, and with State and Territory governments and oppositions, in relation to the timing of the referendum and the content of the proposals.

c. The referendum should only proceed when it is likely to be supported by all major political parties, and a majority of State governments.

d. The referendum should not be held at the same time as a referendum on constitutional recognition of local government.

e. Before the referendum is held, there should be a properly resourced public education and awareness program. If necessary, legislative change should occur to allow adequate funding of such a program.

f. The Government should take steps, including through commitment of adequate financial resources, to maintain the momentum for recognition, including the widespread public support established through the YouMeUnity website, and to educate Australians about the Constitution and the importance of constitutional recognition of Aboriginal and Torres Strait Islander peoples. Reconciliation Australia could be involved in this process.

g. If the Government decides to put to referendum a proposal for constitutional recognition of Aboriginal and Torres Strait Islander peoples other than the proposals recommended by the Panel, it should consult further with Aboriginal and Torres Strait Islander peoples and their representative organisations to ascertain their views in relation to any such alternative proposal.

h. Immediately after the Panel’s report is presented to the Prime Minister, copies should be made available to the leader of the Opposition, the leader of the Greens, and the independent members of Parliament. The report should be released publicly as soon as practicable after it is presented to the Prime Minister.

In discussing the contentious issue of sovereignty the report comments that -

The four principles agreed to by the Panel for its assessment of proposals for constitutional recognition include that a proposal 'must be of benefit to and accord with the wishes of Aboriginal and Torres Strait Islander peoples'. For this reason, the Panel has recorded the voices of those who have raised questions about the continuing sovereign status of Aboriginal and Torres Strait Islander peoples.

As the National Indigenous Lawyers Corporation of Australia noted in its submission, recognition or attribution of sovereign status is unlikely to be given any serious consideration in this round of reform. It counselled, however, that it would 'be remiss of the Panel not to state clearly in its report that recognition of our sovereign status is an aspiration of Aboriginal people and Torres Strait Islanders and an issue that will need to be confronted at some stage in the not too distant future'.

Advice received by the Panel is that the sovereignty of the Commonwealth of Australia and its constituent and subordinate polities, the States and Territories, like that of their predecessors, the Imperial British Crown and its Australian colonies, does not depend on any act of original or confirmatory acquiescence by or on behalf of Aboriginal and Torres Strait Islander peoples. It derives from the majority view of the High Court in Mabo v Queensland (No 2) that the basis of settlement of Australia is and always has been, ultimately, the exertion of force by and on behalf of the British arrivals. Advice to the Panel is that recognition of Aboriginal and Torres Strait Islander peoples in the Constitution as equal citizens could not foreclose on the question of how Australia was settled. Nor should constitutional recognition in general have any detrimental effect, beyond what may already have been suffered, on future projects aimed at a greater place for customary law in the governance of Australia.

Any proposal relating to constitutional recognition of the sovereign status of Aboriginal and Torres Strait Islander peoples would be highly contested by many Australians, and likely to jeopardise broad public support for the Panel's recommendations. Such a proposal would not therefore satisfy at least two of the Panel's principles for assessment of proposals, namely 'contribute to a more unified and reconciled nation', and 'be capable of being supported by an overwhelming majority of Australians from across the political and social spectrums'.

While questions relating to sovereignty are likely to continue to be the subject of debate in the community, including among Aboriginal and Torres Strait Islander Australians, the Panel does not consider that these questions can be resolved or advanced at this time by inclusion in a constitutional referendum proposal.

Qualitative research undertaken for the Panel in August 2011 found that 'sovereignty' and 'self-determination' were poorly understood concepts. Given the apparent diversity of current understanding in relation to the meaning of sovereignty and its significance, any such proposal is also unlikely to satisfy the fourth of the Panel's principles, namely the requirement that it be 'technically and legally sound'.

Rich and strange

One of my more affluent friends quips that you can tell what God thinks about money by the people he gives it to.

I'm reminded of that aphorism in reading Ashton v Pratt (No 2) [2012] NSWSC 3, a dispute over the wealth of colourful entrepreneur Richard Pratt.

The ABC reports that -

A former Penthouse Pet and mistress to the late cardboard mogul Richard Pratt has lost her multi-million-dollar claim on his estate.

The New South Wales Supreme Court ruled that Madison Ashton and her billionaire lover did not intend to enter into a legally binding relationship.

It also found a $100,000 payment she accepted from Mr Pratt finalised any deal made between the pair.

The judgment is more interesting, bother for its affirmation of a range of legal principles and for reported conversations that on occasion read as bad soap opera. Do people really speak that way?

The Court indicates that -

Between about 1995 and 1997, the plaintiff Madison Ashton provided what are euphemistically called escort services to the late Richard Pratt, a married man of exceptional wealth, from time to time, for reward. This came to an end when Ms Ashton married a third party in April 1997. Following the breakdown of her marriage, and of a subsequent de facto relationship, contact between Ms Ashton and Mr Pratt resumed in October 2003. Ms Ashton contends that in a conversation between them in November 2003, Mr Pratt promised her that, in consideration of her not returning to the escort industry but providing services (non-exclusively) to him as his mistress on occasions when he was in Sydney (which was typically one and sometimes two nights per week), he would settle $2.5 million upon trust for each of her two children, pay her an allowance of $500,000 per annum, and in addition pay her $36,000 per annum for her rental accommodation and $30,000 per annum for travel expenses in connection with her proposed business. Ms Ashton now sues Mr Pratt's widow, as the executor of his estate, on those promises, in contract and alternatively equitable estoppel. The main issues are:

1) Whether (as a matter of fact) Mr Pratt made the alleged promises;

2) If so:

(a) whether the promises were sufficiently certain to amount to a contract;

(b) whether they were intended to create legal relations; and

(c) whether they are unenforceable for public policy reasons;

3) If not enforceable in contract, whether the promises are enforceable by way of equitable estoppel; and

4) Whether Ms Ashton's claims are not maintainable by reason of having been previously compromised and released, in February 2005 or November 2005.

Fans of 'lives of the rich & famous' will presumably enjoy passages such as

Ms Ashton was adamant that her obligations to Mr Pratt did not require that her relationship with him be exclusive, so that she was at liberty to bestow her favours on others also. In about February 2004, Ms Ashton commenced - she says with Mr Pratt's concurrence - a sexual relationship with one Mr Sean Bowman, a bodyguard of Mr Pratt who had apparently intimidating qualities, which relationship continued, at varying degrees of intensity, until mid to late 2005.

I am more enthused by the restatement of law, such as -

Save for tendering some documents, the defendant called no evidence. Mr Gray had sworn an affidavit which had been filed and served, but ultimately was not read. Ms Ashton's evidence therefore was, although strongly challenged, uncontradicted. In these circumstances, it is worth recording the approach of the court to the finding of facts.

The plaintiff bears the onus of proof. In a civil case such as this, the standard to which she must prove her case is the balance of probabilities, but this nonetheless involves "actual persuasion" [Watson v Foxman (1995) 49 NSWLR 315, 319].

18In the case of a claim against a deceased estate founded on the oral utterances of the deceased, which only the deceased could have denied, the Court scrutinises the claimant's evidence closely [Plunkett v Ball (1915) 19 CLR 544, 548-549 (Isaacs J); Bovaird v Frost [2009] NSWSC 337, [45]; Varma v Varma [2010] NSWSC 786, [418]-[422]], and although there is no absolute legal requirement for it, ordinarily looks for some corroboration [Re Hodgson (1886) 31 Ch D 177; Weeks v Hrubala [2008] NSWSC 162, [20] (Young CJ in Eq)].

19In certain circumstances, a court may infer from a party's failure to call a relevant witness that the evidence such a witness would have given would not have assisted the party's case, so as to enable the more ready drawing of adverse inferences otherwise available on the evidence [Jones v Dunkel (1959) 101 CLR 298]. This does not arise unless it is established that the relevant witness has relevant knowledge to put before the Court, and is under the control of the party who might be expected to have called that witness, or at least is not practically available to the other party [Payne v Parker [1976] 1 NSWLR 191, 196, 197].

There are many reasons for doubting the reliability of Ms Ashton's version. These include that she (orally) denied having had a drug habit in late 2004 and 2005, when her affidavit evidence referred to "my habit at that time" - which she incredibly explained as a reference to her not having a drug habit at the time; that she denied any knowledge of Mr Bowman seeing a woman by the name Michelle, when in a statement to police in early 2006 she had asserted that he was doing so; and that she was unable to explain why her claim included $500,000 per annum allowance for some years after Mr Pratt's death. Further, for reasons that will appear, I have found myself quite unable to accept Ms Ashton's claims to have had a telephone conversation as she claims with Mr Pratt on 11 February 2005.

More fundamentally, while Ms Ashton's Statement of Claim pleaded that the relationship came to an end in 2004, and her affidavit evidence was to the same general effect, her oral evidence was that their relationship continued, albeit much more sporadically, until late 2005. However, the telephone records of the parties provides strong evidence that their "relationship", such as it was, had concluded by about April 2004, which corresponds with when Mr Pratt resumed his relationship with Ms Hitchcock, and Ms Ashton commenced a relationship with Mr Pratt's bodyguard, Mr Bowman. Between 7 May and 19 July 2004, there was telephone contact between them on only three days. Thereafter, the next telephone contact was on 17 January 2005. The tenor of Ms Ashton's 19 January 2005 letter is against there being an on-going "mistress" relationship at that time. The records evidence one short (1 minute) telephone call by Ms Ashton to Mr Pratt on 19 January 2005, another (2 minutes) on 25 January, and several on 7 February 2005, but none thereafter. As well as the telephone records being devoid of any evidence of later contact between them, Ms Ashton was unable to name any person who saw them together after mid 2004 - which was not assisted by her unconvincing resort to Mr Pratt's driver and concierge, when she was later to say that they did not in any event meet at his apartment at that time. I therefore do not accept her assertion of an on-going relationship with Mr Pratt after mid-2004.

Moreover, as was pointed out on behalf of the defendant, there were some differences between the version in Ms Ashton's affidavit, and the version in her verified pleading. The pleaded version was that Mr Pratt promised to establish a trust fund of $2.5 million for each of her two children "to be managed by the plaintiff for the benefit of the said children who are presently minors" - not that he would make the arrangements for setting up of the trust, as her affidavit version describes. Secondly, it was pleaded that Mr Pratt would pay the rent on her rented apartment, when the affidavit version was that he would pay rent for her if she moved out of that apartment. But I do not find those discrepancies particularly telling. Reference was also made to the circumstance that the pleading referred to a "retainer of $500,000 nett of taxation", while the affidavit referred to it being "tax free"; I see no significance at all in this supposed discrepancy.

On the other hand, in the context of the extraordinary wealth involved and the extraordinary circumstances of this extraordinary case, including the evidence bearing on Mr Pratts' relationship with Ms Hitchcock, I do not accept that Ms Ashton's account is inherently incredible. Some corroboration, albeit not independent, of Ms Ashton's version of the critical November 2003 conversation is provided by her letter of 19 January 2005. About it, the following observations must be made. First, it does not refer to the alleged allowance of $500,000 per annum, which - at least on one view - was the most significant of the alleged promises. Ms Ashton says that she raised this in her subsequent telephone conversation with Mr Pratt, and described its omission from the letter as a "huge mistake". Secondly, the letter does not assert an entitlement to be paid in accordance with the promises, but seeks a "payment figure" by way of "financial help"; it asks for a payment in the light of damage to Ms Ashton's reputation said to have been inflicted by Ms Hitchcock. This tends against a view that the promises were intended to be legally binding and enforceable.

Similarly, some further corroboration is afforded by the circumstance that Ms Ashton consulted solicitors with a view to initiating the present claim in January 2009, while Mr Pratt was alive, at a time when she could not have known that he would soon die, although it was not formally asserted until December 2009, after his death. Nonetheless the claim had been raised by Ms Ashton against Mr Pratt during his lifetime, in the 19 January 2005 letter, at a time when he was able to answer it, and in circumstances in which, even after his death, Mr Gray became sufficiently appraised of it to be able to answer it. At least to an extent, this distinguishes her claim from those which typically attract the rigours of Plunkett v Ball and Re Hodgson. ...

I therefore find, on balance, that Ms Ashton and Mr Pratt had a conversation in or about November 2003 substantially to the effect deposed to by Ms Ashton, in which he told her that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per annum for rental accommodation for her (or buy her a house in the eastern suburbs), and pay $30,000 per annum for her business expenses, particularly travel.

In considering claims regarding a contract between the cardboard czar and Ms Ashton the Court comments that -

I do not accept that the terms of the arrangements discussed in the November 2003 conversation are too uncertain and incomplete to make a contract. Nonetheless, I am unpersuaded that Mr Pratt and Ms Ashton intended to make a contract. In the absence of express statement that their arrangements were or were not intended to be legally binding, intention to create legal relations is an inference of fact, determined objectively; accordingly, Ms Ashton's subjective intentions in that respect are not relevant [Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, 105-7, [24]-[28]; Darmanin v Cowan [2010] NSWSC 1118, [204]-[215]].

Family, social, and domestic arrangements do not normally give rise to binding contracts, because the parties lack the necessary intention [Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, 310 (Handley JA, referring to Balfour v Balfour [1919] 2 KB 571)]. In Balfour, a husband's promise to pay his wife an allowance of 30 per month until she could rejoin him in Ceylon was held not binding for lack of intent that it be legally enforceable. In Cohen v Cohen (1929) 42 CLR 91, Dixon J (as he then was) held an arrangement between intending husband and wife as to a dress allowance to be not a contract (at 96):

The parties did no more, in my view, than discuss and concur in a proposal for the regular allowance to the wife of a sum which they considered appropriate to their circumstances at the time of marriage.

In Jones v Padavatton [1969] 2 All ER 616, a mother's promise to maintain her daughter at a specified rate if she would go to England and read for the Bar with a view to later practising in Trinidad was held not legally binding, notwithstanding that performance would necessitate the daughter abandoning secure accommodation and employment in Washington and her teenage son's education there. The court found that the arrangement between the mother and daughter was a family arrangement depending on the good faith of the parties in keeping the promises made and was not intended to be a binding agreement. The daughter's claim thus failed. Salmon LJ said (at 621):

Did the parties intend the arrangement to be legally binding? This question has to be solved by applying what is sometimes (although perhaps unfortunately) called an objective test. The court has to consider what the parties said and wrote in light of all the surrounding circumstances, and then decide whether the true inference is that the ordinary man and woman, speaking or writing thus in such circumstances, would have intended to create a legally binding agreement.

As Ward J has recently explained in Darmanin (at [206]), there is a rebuttable presumption of fact that arrangements or agreements made in a family are not intended to have legal force, the rationale being that, at the time of making the alleged promise, the parties would not have regarded their arrangements in terms of legal consequences. As her Honour also explained (at [207]), this presumption has been applied beyond the family context to other social and domestic arrangements [citing, as examples, Coward v Motor Insurer's Bureau [1963] 1 QB 259; Buckpitt v Oates [1968] 1 All ER 1145; and Parker v Clark [1960] 1 All ER 93].

As I observed in Bovaird v Frost (at [52]), there are of course many examples of cases involving promises to confer benefits on a friend or relative, in consideration of the latter taking up residence with the former or rendering household or personal services, in which the requisite intention to create legal rights and obligations has been found - particularly where implementation of the arrangement involved the promisee leaving existing advantages or selling an existing residence [Wakeling v Ripley (1951) 51 SR (NSW) 183; Todd v Nicol [1957] SASR 72; Parker v Clark; Schaefer v Schumann [1972] AC 572; Tanner v Tanner [1975] 1 WLR 1346; Raffaele v Raffaele [1962] WAR 29; Re Gonin (deceased) [1979] Ch 16]. In Wakeling v Ripely, the act of the plaintiff in leaving a salaried position in Cambridge on the faith of a promise to take up accommodation in Bowral, was considered so serious that it would have been obvious to the defendants that the plaintiffs were relying upon what was considered a definite assurance and a definite agreement, such that it could be inferred that there was an intention to create legal relations; this may be contrasted with Jones v Padavatton, supra. But in this context it is also recognised that a sacrifice might be made in reliance upon a promise on the basis simply of trust in the promisor to honour the promise of support, not because of an intention to create legally binding relations [see Jones v Padavatton, 625 (Fenton Atkinson LJ); Darmanin, [209]].

In the present case, the intent of the arrangements was to establish the basis of the relationship of "mistress". The context was social. Although Ms Ashton agreed not to return to the escort industry, she had already left it and was already embarked on establishing an alternative business, so it was not as if it was obvious that she was relying on an enforceable promise. The parties neither sought legal advice, nor recorded their agreement in writing. Ordinary people in their position would not have intended that in the event that either did not fulfil their respective promises, the other could enforce the promise in a court. There is considerable force in the defendant's submission that it would not have been envisaged that, if Ms Ashton returned to the escort industry, Mr Pratt could obtain an injunction to restrain her; nor that if she did not fully perform the role of "mistress", he could claim damages for disappointment. ...

While in my view this is a case in which the presumption applies and is not rebutted, I am in any event satisfied that the parties did not in November 2003 intend to make a contract. The conclusion which I have reached below on the public policy issue also favours the view that the parties did not intend to create legal relations.

What about public policy?

The defendant did not plead a defence that any such contract as was asserted by the plaintiff was void, illegal or unenforceable on grounds of public policy. However, in my opinion, where a court forms the view that a contract may be void, illegal or unenforceable on public policy grounds, it is bound to address the issue, even if the parties prefer to ignore it [cf Hyde Park Residence Ltd v Yelland [2001] Ch 143, 160 [44]]. In this case, the attention of the parties was drawn to the matter and submissions on it invited; and although not adopted by the defendant, senior counsel for the plaintiff in response made oral and written submissions and referred to some relevant authorities on the issue ...

One of the heads of public policy under which contracts have traditionally and conventionally been held void and illegal is that they are sexually immoral and/or prejudicial to the status of marriage. In Girardy v Richardson (1793) 1 Esp Cas 13, 170 ER 275, Lord Kenyon CJ held that where the wife of the plaintiff - who managed the business of his house in letting the lodgings - let rooms to the defendant who was a "woman of the town", knowing of the defendant's mode of life, the contract for use and occupation of the rooms upon which the plaintiff sued was " contra bonos mores " and could not found an action. The classic case is Pearce v Brooks (1866) LR 1 Exch 213, in which the plaintiffs let on hire to the defendant, a prostitute, a new horse-drawn vehicle, with knowledge that it was to be used in the course of her trade. The contract was held illegal on the ground of sexual immorality. In Upfill v Wright [1911] 1 KB 506, the plaintiff by his agent let a flat to the defendant for a term of three years, the agent knowing that the defendant was the mistress of a certain man, and assuming that the rent would be provided by that man on account of her being a "kept woman". The court held that as the flat was let for an immoral purpose, the plaintiff was not entitled to recover the rent.

In more modern times, the House of Lords in Fender v St. John-Mildmay [1938] AC 1 held that a promise made by a spouse, after a decree nisi for the dissolution of the marriage had been pronounced, to marry a third person after the decree became absolute, was not void as being against public policy. But Lord Wright explained (at 42) (emphasis added):

The law will not enforce an immoral promise, such as a promise between a man and woman to live together without being married, or to pay a sum of money or to give some other consideration in return for immoral association . But nothing of the sort was suggested in this case. On the contrary, the promise, if carried out, would have regularized an immoral association. English law recognises the right of divorced people to marry though their former consorts are alive. The law has furthermore sacrificed a rigid idea of morality to the idea of making reparation by enforcing obligations under seal by a man to pay money to a woman in respect of past immoral cohabitation, though it might have been said that to enforce such obligations tended to encourage immorality.

... Changes in social mores have resulted in a more liberal attitude to contracts providing for or relating to extramarital cohabitation, such that a contract is no longer to be regarded as contrary to public policy merely because the parties are living together in a de facto relationship [Carter Peden and Tolhurst, Contract Law in Australia, 5th ed, [25-32]]. But the old rule has not been completely obliterated. The question is, what is its remaining content?

In Queensland, in Andrews v Parker [1973] Qd R 93, the parties lived together in a de facto relationship. Subsequently, the man agreed to transfer title in his house to the woman subject to terms including that she reconvey the title if she returned to her husband. In due course she did, and asked the plaintiff to leave the house, offering to pay $4,000. The man left but the woman failed to pay. Stable J held that the original agreement to transfer the house was not contrary to public policy as it did not bring about a state of extramarital cohabitation , because one already existed. His Honour said that the court was not to judge the actions of the parties in the light of the 19th century cases, and was bound to apply the public policy of the day and to consider contemporary moral standards. An important point, however, is that the contract did not bring about a state of extramarital cohabitation: it already existed.

In England, in Horrocks v Forray [1976] 1 WLR 230, the defendant - the mistress of a man - bore him a daughter, whom the man thereafter wholly maintained and supported providing living accommodation, clothing, holidays and day-to-day expenses. He subsequently bought a house and told the solicitor that it was for the defendant and her daughter, whom he installed in it, though not conveying it to her. Upon his death in a motor vehicle accident, by his will all his estate devolved on his wife; neither she nor his executors had known of his association with the defendant nor of the purchase of the house. The executors brought an action for possession of the premises on the ground that the defendant's licence terminated on the man's death. She contended that she had a contractual licence to live there for life or while her daughter was of school age. The Court of Appeal upheld the County Court judge's decision that the circumstance that the man intended to provide some security for the defendant was insufficient to bring into existence a binding contract in the nature of a licence, and in all the circumstances there was no evidence justifying the inference that she had a contractual licence. This result was reached without reliance on public policy considerations, but Scarman LJ said (at 239):

When an illegitimate child has been born, there is certainly nothing contrary to public policy in the parents coming to an agreement, which they intend to be binding in law, for the maintenance of the child and the mother. Parents of an illegitimate child have obligations towards the child. So far from its being contrary to public policy that those obligations should be regulated by contract, I would have thought it was in the public interest that they should be so.

... The New South Wales Court of Appeal held, in Seidler v Schallhofer [1982] 2 NSWLR 80, that an agreement which provided for the continuation of a de facto relationship for a specified period and thereafter for marriage or separation was not void as being contrary to public policy, because the "immorality" of the relationship was already in existence when the agreement was executed, so that the agreement merely formalised what was to happen to the financial aspects of the relationship once the cohabitation came to an end. Further, it was said that the concept of public policy had changed - as appeared from, amongst other factors, Commonwealth and State legislation which ameliorated the consequences of extramarital associations - at least to the extent of allowing such an agreement to be enforced. ...

In Nichols v Nichols (Supreme Court of New South Wales, Needham J, 12 December 1986, unreported) the plaintiff who lived principally with his wife and family had a sexual relationship with the defendant, whom he supported including by paying her rent; they had children, whom he also supported. He purchased a flat and installed the defendant and their sons in it, where he spent at least one night per week. ...

It is now provided by statute that notwithstanding any rule of public policy to the contrary, two persons who are not married may enter into a domestic relationship agreement or termination agreement which is enforceable in accordance with the law of contract [(NSW) Property (Relationships) Act 1984, s 45, s 46]. But as the relationship between Mr Pratt and Ms Ashton did not contemplate cohabitation, it was not a domestic relationship within the Act.

In the more recent cases to which reference has been made, there are two notable features that have saved the relevant contract from illegality on the grounds of immorality: the first is that the contract did not bring about a state of extramarital cohabitation, but made provision in respect of one that already existed; and the second is that it did not involve meretricious sexual services, but a sexual relationship as part only of a wider relationship that included cohabitation and aspects of mutual support. As Hope JA pointed out in Seidler v Schallhofer (at 87), the effect of what Lord Wright said in Fender was that the agreement was not illegal as tending to encourage sexual immorality because the immorality already existed, and although the effect of the promise would be to continue it, the purpose of the promise was to bring it to an end after the divorce decree became absolute.

So far as I can tell, no case stands contrary to the proposition that it is still the law that a contract to provide meretricious sexual services is contrary to public policy and illegal. Seidler v Schallhofer said as much in 1982, as did Marvin v Marvin in 1976 in California. While social mores have no doubt continued to change, as authority stands such a contract remains contrary to public policy and illegal. This view of the law is confirmed by Markulin v Drew (New South Wales Supreme Court, Young J, 12 August 1993, unreported), which bears considerable similarity to the present case. The plaintiff (woman) alleged a contract whereby she was "to see the deceased every three months as well as telephoning him occasionally, and the deceased would pay her $40,000 clear per year, purchase her a 'top' car and a beautiful home anywhere in Sydney she'd like to live, as well as providing a large sum of money which would be sufficient for the plaintiff to live on for the rest of her life without working for a living". Illegality (for promoting sexual immorality) was pleaded as a defence. Young J (as his Honour then was) reviewed the authorities, and, adopting the statement in Treitel on Contracts, 8 th ed, 390-392, that "a distinction is now drawn between contracts with purely meretricious purposes and those which are intended to regulate stable extra marital relationships", accepted that neither in England nor Australia did the law now refuse to enforce as illegal contracts which involved cohabitation between people who are not married to each other - even if one or both of them is married to someone else - but also observed that the former rule had not been completely deprived of content. His Honour explained:

Accordingly the distinction that Treitel is making is between a man and a woman who are sharing a life together though not married including sexual relations on the one hand and a man and a woman who are living independent lives but the man is rewarding the woman for sexual services which she provides from time to time. Indeed, in this modern age it may be that it is the woman who is rewarding the man for sexual services he provides from time to time.

It should be remembered, however, that traditionally there were in fact three classes of cases: (i) a contract of cohabitation; (ii) a contract by a man with a woman to provide occasional sexual services; and (iii) an agreement with a common prostitute. Cases such as Bainham v Manning (1691) 23 ER 756 suggest that while relief would not be given to a man against a bond he had given to a common strumpet or prostitute, equity would not countenance a transaction whereby a man had given a bond to a housekeeper to secure a sum of money to her if she provided "secret services", presuming attending on her master for sex if required. Accordingly, "meretricious" probably means not a contract with a prostitute, but a contract treating a woman as if she were a prostitute.

The arrangements between Ms Ashton and Mr Pratt involved none of the saving graces which enabled a different result to be reached in the cases to which I have referred. Those arrangements were not made to facilitate continuation of an existing cohabitation, but to establish the "mistress relationship". The evidence does not reveal a relationship, or consideration, beyond "meretricious sexual services". In my view, on the current state of the authorities, the arrangements were contrary to public policy and illegal in the relevant sense. Had they otherwise constituted a contract, it would have been void as contrary to public policy.

The Court's conclusion is that -

Ms Ashton and Mr Pratt had a conversation in or about November 2003 substantially to the effect deposed to by Ms Ashton, in which he told her that he would establish trusts of $2.5 million for each of her two children, pay her an allowance of $500,000 per year, pay up to $36,000 per annum for rental accommodation for her (or buy her a house in the eastern suburbs), and pay $30,000 per annum for her business expenses, particularly travel.

However, Ms Ashton's case in contract fails - although the terms of those arrangements were not too uncertain and incomplete to amount to a contract - first because Mr Pratt and Ms Ashton did not intend to enter into binding and enforceable legal relations, and secondly because public policy denies enforceability to any such contract as alleged.

Ms Ashton's estoppel claim also fails, first because she incurred no relevant detriment, and secondly because of the same public policy, the operation of which is not limited to contractual claims.

Moreover, Ms Ashton's claims are not maintainable, because they were the subject of an accord and satisfaction in February 2005, when she accepted $100,000 in full and final satisfaction of all her claims against Mr Pratt; and they were again released in November 2005.

Roadmap

It's fascinating to discover the analogies that people use to make sense of the world. Aging football star Gary Ablett disproved evolution (at least to his satisfaction) by referring to a jar of Vegemite and the celestial clockmarker. The telephone, as a past post noted, is used to characterise prayer. Aging tennis star (and pastor at the Victory Life Centre church in Perth) Margaret Court has been somewhat more adventurous in denouncing advocacy of same-sex marriage as promoting "unhealthy" and "unnatural" unions.

"I actually love homosexual people," the 69-year-old said in a telephone interview. "I do not have anything against them. It's just my view [about gay marriage] and it's in the scriptures ... The Bible will always be the TV guide to my life".

Uh huh. She had denied a penchant for hatespeech, explaining that

To dismantle this sole definition of marriage and try to legitimise what God calls abominable sexual practices that include sodomy, reveals our ignorance as to the ills that come when society is forced to accept law that violates their very own God-given nature of what is right and what is wrong.

Reportage by Reuters alas does not give details of which celestial "TV guide" is used by Ms Court, an exponent of the prosperity gospel, faith healing and unpleasantness about people whose lives differ from what she characterises as "the silent majority".

Presumably her version skips those oh so inconvenient prohibitions in the Old Testament (no pork, no shellfish, no flatfish, no garb of mixed fibres), exhortations to immolate witches and punishments for failing to engage in ethnic cleansing, and permissiveness - if not actually encouragement - regarding concubinage, slavery and other practices that would raise an eyebrow if depicted on free to air broadcast television during the children's period. If she's reading the guide selectively - a bit of channel surfing perhaps - she can ignore the OT unhappiness about female agency and the exposure of her body as she danced about the tennis court. A female pastor? Hmm. Perhaps she popped into the kitchen for a warm cup of cocoa during an ad break and missed the vibe about gender roles.

The Victory Church website indicates that the institution is led by "Rev Dr Margaret Court AO, MBE".

Senior Minister, Ps Margaret Court was officially ordained to Christian ministry in 1991 after seventeen years of service for the Lord. In the same year she established Margaret Court Ministries Inc, an outreach ministry to take the gospel to the people and to hold miracle and healing meetings throughout the city.

Ps. Margaret says, "Victory Life Church is the fulfilment of a vision God gave to me some time ago, that a mighty work of mercy, love and compassion be established in this great city of Perth." She sees this work as her greatest challenge yet; far surpassing her days in pro-tennis which saw her extraordinary vision, talent and determination take her to the top in that sport. She retired from the tennis circuit in 1976 with sixty-two Grand Slam titles to her credit. Margaret and Barry have three daughters, a son and four grandchildren.

Being much in demand, not only in Australia but also overseas, Margaret teaches and ministers with a very powerful healing anointing. Victory Life Centre has been blessed with leaders who know the call of God on their lives, and that He has call them to serve at this Church. As a result, a number of the areas of ministry which God had shown Ps Margaret to establish are now in place.

The site allows you to order a prayer online and to shop, perhaps in the best tradition of the TV guide.

The sense of some items on her blog is unclear. Not being blessed with a cosmic connection I'm still grappling with "A governmental decree is speaking forth, in faith and power, from human lips what God has previously ordained from eternity past.". Other items are deliciously retro -

I love my nation and have proudly fought battles in the tennis court and stood under it’s flag many times. I believe God’s hand has been over our nation for good as we have acknowledged Him and looked to Him. Because of this we have been a blessed nation.

It is sad to see a minority able to exercise influence over the majority. May the silent majority be silent no more. Our education system, hospitals, freedom of speech owe a debt of gratitude to our Christian heritage. We need to celebrate it .

In August last year the blog states that

In Genesis 2:24 it says: “Therefore, a man shall leave his father and mother and shall be joined to his wife and they shall become one flesh.” It says it again in Ephesians 5:31. Marriage is ordained by God – it is all the way through the bible that a husband and wife would multiply the earth.

The bible is a living book; it is our TV guide to life and how to have a successful marriage and how to raise a family. It also says that homosexuality, adultery, fornification, is an abomination. God loves the person and we are to love the people but nowhere does it say that two people of the same sex should marry and have children.

Let us all be a Voice and stand up for marriage and family as God has ordained it

Conveniently there's no citation of Leviticus ... but people engaged in theological channel surfing presumably don't need to worry about consistency, getting to quote Genesis but not some of the nasty or merely (to a contemporary eye) more ludicrous bits.

A reader notes that "in May 2001 [she] received an Honorary Doctorate (Doctor of Laws Degree) from Oral Roberts University, USA for her contribution as a Pastor not only to the body of Christ but also to the community". An honorary degree from an institution perhaps best known for funding scandals and a history of segregation.

Sociologists of religion and of conversion narratives might relish the explanation that -

Living life as a normal housewife and mother was a new challenge. But more than anything, Margaret wanted to find out more about her new Christian life. In her search, well-meaning people gave her wrong counsel regarding inner healing and deliverance which actually threatened her life and sanity.

Gradually, feelings of uselessness, inferiority, unworthiness began to manifest into physical ailments and soon Margaret suffered from fear, depression, insomnia and a torn valve of the heart. The once healthy, fittest woman in the world was now weak and fearful and afraid to go to sleep. She cried out to God for a better way!

God answered her prayers. After watching a life-changing video by Dr Fred Price in 1979 which taught on how faith can grow and how you can overcome any area of defeat in your life, Margaret began to attend a newly formed church in Perth.

Equasy

Jeff Stier in a review in Reason notes "the sad story of psychopharmacologist David Nutt’s brief term as chairman of the British Advisory Council on the Misuse of Drugs".

Shortly after he was appointed to the position in May 2008, the Sun reported that Nutt thought Ecstasy and LSD should be removed from the legal category ostensibly reserved for the most dangerous drugs, kicking off a Fleet Street frenzy.

Instead of backing down, Nutt doubled down. In a satirical article published by the Journal of Psychopharmacology in January 2009, he analyzed “an addiction called ‘Equasy’ that kills ten people a year, causes brain damage and has been linked to the early onset of Parkinson’s disease.” Nut added that Equasy “releases endorphins, can create dependence and is responsible for over 100 road traffic accidents every year.”

Had Nutt not revealed that Equasy was simply the time-honored sport of horseback riding, activists certainly would have rushed to introduce a ban. Nutt pointed out that since Equasy causes acute harm to one out of 350 riders, it is far riskier than Ecstasy, for which the fraction is one out of 10,000. His point, of course, was that prohibition has less to do with risk than with the importance society attaches to a risky activity. As Snowdon puts it, “If the cultural baggage is put to one side, and activities are assessed on the basis of mortality rather than morality, there are glaring inconsistencies in the way laws deal with different hazards.” In October 2009, British Home Secretary Alan Johnson fired Nutt for failing to recognize that “his role is to advise rather than criticise.”

Nutt's 'Equasy − An overlooked addiction with implications for the current debate on drug harms' in 23(3) Journal of Psychopharmacology (2009) 3-6 [PDF] comments that -

arguments about relative drug harms are occurring in an arcane manner, at times taking a quasi-religious character reminiscent of medieval debates about angels and the heads of pins!

The reasons for this are multiple and complex, but one major element is that the drug debate takes place without reference to other causes of harm in society, which tends to give drugs a different, more worrying, status. In this article, I share experience of another harmful addiction I have called equasy to illustrate an approach that might lead to a more rational and broad-based assessment of relative drug harms.

The dangers of equasy were revealed to me as a result of a recent clinical referral of a woman in her early 30’s who had suffered permanent brain damage as a result of equasy-induced brain damage. She had undergone severe personality change that made her more irritable and impulsive, with anxiety and loss of the ability to experience pleasure. There was also a degree of hypofrontality and behavioural disinhibition that had lead to many bad decisions in relationships with poor choice of partners and an unwanted pregnancy. She is unable to work and is unlikely ever to do so again, so the social costs of her brain damage are also very high.

So what was her addiction – what is equasy? It is an addiction that produces the release of adrenaline and endorphins and which is used by many millions of people in the UK including children and young people. The harmful consequences are well established – about 10 people a year die of it and many more suffer permanent neurological damage as had my patient. It has been estimated that there is a serious adverse event every 350 exposures and these are unpredictable, though more likely in experienced users who take more risks with equasy. It is also associated with over 100 road traffic accidents per year – often with deaths. Equasy leads to gatherings of users that often are associated with these groups engaging in violent conduct. Dependence, as defined by the need to continue to use, has been accepted by the courts in divorce settlements. Based on these harms, it seems likely that the ACMD would recommend control under the MDAct perhaps as a class A drug given it appears more harmful than ecstasy

Nutt went on to state that -

Making riding illegal would completely prevent all these harms and would be, in practice, very easy to do – it is hard to use a horse in a clandestine manner or in the privacy of one’s own home! I suspect there would be little public or government support for such an option despite the banning of inter-species violence from equasy recently enacted in the Anti-Hunting bill. Indeed why should society want to control harmful sports at all? This attitude raises the critical question of why society tolerates –indeed encourages – certain forms of potentially harmful behaviour but not others, such as drug use. There are many risky activities such as base jumping, climbing, bungee jumping, hang-gliding, motorcycling which have harms and risks equal to or worse than many illicit drugs. Of course, some people engage in so called ‘extreme’ sports specifically because they are dangerous. Horse riding is not one of these and most of those who engage in it do it for simple pleasure rather than from thrill seeking, almost certainly in complete ignorance of the risks involved. Other similarly dangerous yet fun activities are rugby, quad-biking and boxing. With the exception of boxing, which is outlawed in some European countries, sports are not illegal despite their undoubted harms.

So why are harmful sporting activities allowed, whereas rela- tively less harmful drugs are not? I believe this reflects a societal approach which does not adequately balance the relative risks of drugs against their harms. It is also a failure to understand the motivations of, particularly younger people, who take drugs and their assessment of the perceived risks compared with other activities. The general public, especially the younger generation, are disillusioned with the lack of balanced political debate about drugs. This lack of rational debate can undermine the trust in government in relation to drug misuse and thereby undermining the government’s message in public information campaigns. The media in general seem to have an interest in scare stories about illicit drugs, though there are some exceptions ...

OH&S

Catching up with the November 2011 Work-related injuries in Australia: Who did and didn’t receive workers’ compensation in 2009–10 [PDF] report from Safe Work Australia, the national government agency established in 2009 under the Safe Work Australia Act 2008 (Cth). It is jointly funded by the national and state/territory governments under 2008 intergovernmental agreement, with primary responsibility of improving work health and safety and workers’ compensation arrangements across Australia.

Safe Work Australia partially funded the Australian Bureau of Statistics’ Work-Related Injuries, Australia, 2009–10 (WRIS) survey in using workers’ compensation claims data to measure work health and safety performance in Australia.

That survey collected information for the period from a sample of people aged 15 years and over who had worked in the previous 12 months and experienced a work-related injury or illness in that time. The November report does not cover all workplace injuries; instead it is restricted to employees, ie those worker who are entitled to workers’ compensation (excluding the self-employed who now make up over 6% of the workforce). An injury is counted in the WRIS survey if the worker felt it arose out of their employment. There is no requirement for the worker to seek medical attention for their injury as is the case with workers’ compensation.

Safe Work Australia indicates that 567,500 employees were injured while working during the period but only 38% received workers’ compensation (representing a slight decrease on the number of employees injured in 2005–06 and an increase on the 33% who were compensated). The number of employees who applied for workers’ compensation but did not receive it increased from 3.8% of injured employees in 2005–06 to 5.4% in 2009–10.

The report indicates that -

The amount of time taken off work following an injury impacted on whether the employee applied for workers’ compensation. The data showed that only 23% of injured employees who took no time off work applied for workers’ compensation compared with 73% of injured employees who took 5 or more days off work.

Male employees were more likely than female employees to receive workers’ compensation though the gap between the sexes has closed slightly in the four years since that last survey. In 2005–06, 38% of male employees received compensation which rose to 42% in 2009–10 while for female employees the proportion increased from 26% to 33%.

A greater proportion of female employees compared with male employees felt their injury was too minor to claim (32% and 28% respectively). A greater proportion of female employees also thought they were not covered for workers’ compensation or not eligible for it, 10% compared with 8% for male employees.

Age played only a small role in whether an employee received workers’ compensation or not. In 2009–10, 36% of injured employees in the 15–24 years age group received compensation compared with 41% in the 55 years and over age group. Similar patterns existed for both male and female employees.

Employees with leave entitlements were more likely than casuals (employees without leave entitlements) to receive compensation. In 2009–10, 48% of employees with leave entitlements received compensation compared with 32% of employees without leave entitlements. Employees without leave entitlements were more likely to think their injury was too minor to claim and more likely to think they were not covered by workers’ compensation.

Part-time employees were less likely to apply for compensation compared with full-time employees. Part-time shiftworkers were the least likely to apply for compensation of all employee groups.

Consistent with statisticcs for the US, Canada and UK employees born in countries that did not have English as its main language were less likely to apply for workers’ compensation compared (34%) with those born in Australia (44%) and those born in main English speaking countries (45%).

Who was being injured? Work Safe Australia indicates that "labourers and machinery operators & drivers" were the occupation groups most likely to receive workers’ compensation. Managers and Clerical & administrative workers were the least likely to receive it. Injuries incurred in falls were the most likely to be compensated. Injuries from "Exposure to mental stress" were the least likely to be compensated. Bad news if you were bullied.

The report indicates that -

Sick leave was the most common type of financial assistance other than workers’ compensation accessed by injured employees. For injuries involving less than 5 days of work, 31% used sick leave. For injuries involving 5 or more days, 20% of injured employees used sick leave. Medicare or other social security payments were accessed by 7% of all injured employees. The data show that no financial assistance was received by 12% of employees who incurred injuries that involved 5 or more days off work.