SHIT HAPPENS: THE CULTURAL POLITICS
... [and so] are exposed to rank hazards and have inadequate knowledge of risks. As a consequence, they carry a heavy burden of musculo-skeletal injuries, few of which are formally reported or compensated.
Compensation for injuries sustained at work is generally available through state workers’ compensation schemes that take the form of compulsory insur-ance arrangements. In fact, motor vehicles and work-related injuries are the most frequently compensated injuries, a fact that might suggest that many migrants are ‘well placed’ to receive compensation, compared with, say, a woman injured in her home undertaking domestic duties. However, a number of factors militate against successful compensation claims by non-English speaking workers. First, musculo-skeletal injuries are difficult to diagnose and their cause is difficult to establish.26Secondly:27
The problem of recognition of injuries and illnesses is compounded if the worker does not speak English well and has to explain his or her symptoms to a doctor who speaks only English. Even if an interpreter is available, subtle but perhaps important meanings can be lost during interpretation. In addition to the specific communication about an illness or injury, NESB workers may be further disadvantaged if they do not understand the workers’ compensation system and its medico-legal aspects.
Thirdly, as a recent survey of primary industry indigenous workers has shown, workers with few marketable skills in jobs with low security and for whom there is little alternative employment ‘tend to under-report their work-related injuries and illnesses to protect income flow’.28
Thus, although the pattern of claims by immigrant workers reflects their position in hazardous working environments – probably contributing to the
‘mythology’ that they make more claims – their outcomes tend to be poor and they receive lower settlements than English-speaking background workers.29 Apart from compensation, immigrant workers also have difficulty in accessing rehabilitation programs. One study found that whereas migrants accounted for over 50% of accident victims, they made up only 5% of rehabilitees.30 Both Commonwealth and private rehabilitation services tend to concentrate on those people who have the best chance of re-entering the workforce, that is those whose injury is not chronic or long-term and who can speak English.31
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26 Lin and Pearse, above n 22, 235.
27 Ibid, 229.
28 Mayhew and Vickerman, above n 25, 66.
29 Lin and Pearse, above n 22, 234.
30 Ibid, 236.
31 Schofield, T, ‘Living With Disability’ in Reid, J and Trompf, P (eds), above n 22, 288, 298.
We can see there is what Jonathan Simon calls the ‘routinisation of risk’, operating to the disadvantage of migrants. The liability system, Simon suggests, can be pictured as a pyramid:32
At the base are first party insurance policies that cover most of the harm suf-fered by most people no matter whose fault ... Higher up is a smaller pool of cases where the victim of the accident and the subject of the insurance policy are not the same (thus called third party insurance), entailing a greater involvement of the law ... [But] law is reduced to a mechanism of deciding which of several large economic entities will pay for damages. It distributes losses amongst various risk communities rather than attributing blame and responsibility. At the pinnacle are a smaller number of exceptionally huge losses due to accidents. Law continues to be a primary way of resolving the placement of these losses ... Law operates as a ritual of sovereignty, allowing moral and political outrage to be mobilised.
Because these ‘huge losses’ still allow a space for the classic tort notions of fault and blame compared with those day-to-day accidents that have been sub-sumed into the ‘routinisation of risk’, they represent what Ann Scales calls the cutting edge of torts practice. Paradoxically, however, they often do not
‘involve linear causation ... The hard cases of today are not atomistic exercises;
they are not about people falling downstairs. They are about capitalism out of control and the incredible capacity of the military-industrial complex to injure masses of people’.33That is, while they are very much about fault, traditional tort causation is acutely problematised in these ‘mass tort’ cases. In fact, the problem of imperfect data and infinite causal predicates is often used to justify the appendage of ‘Shit Happens’ stickers and the denial of tort-based compen-sation.
It is here that the linear causation of common law culture diverges from the lived experience of those who so often bear the brunt of ‘capitalism out of con-trol’. Reflecting on the United States’ atmospheric nuclear testing in Nevada, Scales comments:34
Between 1951 and 1962, the United States detonated over 120 nuclear bombs in the atmosphere upwind of St George, Utah. Recently, the downwinders have experienced increased incidence of leukaemia and other cancers. When I con-sider this situation I think, good God, what more do the plaintiffs need? An atomic bomb has been detonated in the air every six weeks or so, you are downwind, and everybody you know has leukaemia. Legally speaking, of course, it could not be that simple.
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32 Simon, J, ‘The Emergence of Risk Society: Insurance, Law and the State’ (1987) 17 (5) Socialist Review61, 72–73.
33 Scales, above n 21, 117.
34 Ibid, 119. For a discussion of law, causation and evidence across cultures in the context of nuclear testing in Australia see Heather Goodall, ‘“The Whole truth and Nothing But ...”:
Some Interactions of Western Law, Aboriginal History and Community Memory’ in Atwood, B and Arnold, J (eds), Power, Knowledge and Aborigines, 1992, p 104, Bundoora, Vic:
La Trobe University Press.
Likewise, the endemic disadvantage of Aboriginal, Islander and migrant workers will not even surface in tort syllabuses arranged around traditional notions of individual responsibility. Joanne Conaghan and Wade Mansell argue:35
By conceiving of human activity in individual rather than social terms, by analysing harm in terms of the separate causal contributions of individuals rather than as the outcome of a social process, tort law not only fundamentally misrepresents the nature of social activity but also provides a legitimacy for denying compensation to those who are harmed as a result of such activity.
Industrial accidents are easily seen as precisely that: events for which no one is responsible, and the injury is routinised through workers’ compensation sys-tems. Yet the victims of such accidents may see them very differently. For many migrant workers, their poor labour market position, heavy financial commit-ments and being victims of discrimination take away their ability to resist carrying out unsafe tasks, including those tasks that other workers refuse to do.
Caroline Alcorso surveyed a range of migrant workers in New South Wales and concluded that their accounts showed that:36
many clearly felt that their ‘accident’ were [sic] not simply unforeseeable, unintended events, but were directly caused by the social relations in which they as migrant workers, were involved ... [M]any clearly felt that the way they were treated by their employers, and to a certain extent by their work-mates, and their limited power as a result of being migrant workers in Australian society, caused them to do dangerous tasks and to have ‘accidents’.
‘Accidents’ were not seen to occur randomly – they happened to migrants for specific, socially determined reasons.
Many of the most devastating events seem to evade the category of fault altogether and are called ‘natural’ disasters: earthquakes, volcanic eruptions, drought and flood. Yet the question of people’s vulnerability to such events – that is, the question of who suffers most – again reveals a discriminatory pattern. Jon Tinker writes:37
Floods are caused by rain, you will say ... Well, no. Floods on the Indian sub-continent are triggered by the monsoons, but they are caused by deforestation and soil erosion. They are acts of man, not acts of God.
Similarly, earthquakes cause more devastation to the Third World poor in adobe shacks on steep hillsides than the urban First World rich with their strictly enforced building codes. Or, when a hurricane hits, those who suffer the most damage are those forced by poverty and high land prices to live in squatter settlements on low-lying coastal land. Tinker’s examination highlights several important points:38
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35 Conaghan and Mansell, above n 1, 55.
36 Alcorso, above n 24, 57.
37 Tinker, J, ‘Are Natural Disasters Natural?’ (1984) 14 (6) Socialist Review7.
38 Ibid, 19.
● natural disasters are not really natural;
● the human impact of natural disasters is magnified by environmental mismanagement;
● vulnerability to disasters is far higher in the Third World and is largely a matter of poverty;
● for the above reasons, disasters and the deaths they cause are increasing.
Yet at the same time that deaths by ‘natural’ disasters increase, the supposed
‘naturalness’ of those events keeps them – and their victims – out of bounds of a traditional tort syllabus focused on ‘fault’.
Given our reservations about a negligence law preoccupied with individual responsibility, in the next section we want to examine whether there is any potential for tort law being utilised to address the systemic disadvantage often suffered by minority cultures.