LAW OF TORTS II

The application of negligence law in Cattanach (2003) 215 CLR 1 demonstrates how the law is capable of not only dealing with an issue in a legal sense, but also in a way that is conscious of the development of society. It is possible that the law provides guidance when the development of society, in a specific area, is stunted.

R O M E O  (1998) 192 CLR 431

Romeo (1998) 192 CLR 431, unlike Cattanach (2003) 215 CLR 1, deals with an issue of society in more broad terms. The issue in Romeo (1998) 192 CLR 431, was whether or not the Commission was to be held negligent for failing to erect a fence at the edge of a popular cliff face. The claim was brought after an intoxicated teenager fell off the cliff and sustained grave injuries. Each of the judgments, at one point or another, discuss the problem that arises when the interests of an individual must be weighed against the interest of the greater community. This is explained by Peter Cane in Taking Disagreement Seriously: courts, legislatures and the reform of tort law when he writes:

In fact, making and developing tort law involves striking a balance between the interests we all share in personal and financial security on the one hand, and freedom of action on the other.

This statement is exemplified in Brennan CJ's judgment when he writes:

...public authorities will be required to erect structures in... areas of natural beauty to the detriment of the environment and the enjoyment thereof by the general public in order to safeguard... the few careless visitors.

Both of these statements reveal that the law of torts not only attempts to provide compensation for the aggrieved, but in doing so ensures that the community does not suffer detriment. In Romeo (1998) 192 CLR 431, the cost of erecting far-reaching fences would have presented the Commission with a cost burden. Such a burden could have taken funding from other, more necessary, areas. In this way, tort law operates for the good of the individual and the greater community. Such a two-fold operation provides society with an efficient tool for development.

I P P  R E P O R T

The Ipp Report, which was chaired by the Honourable David Ipp, was established to confront and reform aspects of the law of negligence that had become cumbersome and inefficient. There were a number of factors that sparked the review and each will be discussed in brief so as to provide context for the reforms that followed.

The most controversial of which was the notable increase in insurance premiums prior to 2002. Although some contention does surround the cause for this increase, it can be suggested that an increase in personal injury claims was a contributing factor. This factor was supported by the Ministerial Meeting on Public Liability when the Ministers suggested: “unpredictability in the interpretation of the law of negligence is a factor drivig up [insurance] premiums.” 

Further to this were concerns that liability arising from personal injury and death were without much limitation. The Ipp Report introduced this concern in the Introduction by explaining that: “In recent times it has become too easy for plaintiffs in personal injury cases to establish liability for negligence on the part of defendents.” Subsequent to this was a notion that in such cases damages awards were too high. These factors, concerned mainly in the area of personal injury, established a basis for the Ipp Report to begin a process of reformation. It is important to recognise the context of the Ipp Report in order to appreciate how the law is capable of promoting social development and reform.

The Ipp Report dealt with specific aspects of negligence law, three of which will be discussed in the following section of the study. Firstly, the Report acknowledged that negligence law needed to be stated with a greater degree of clarity and certainty. Although aspects of negligence law remained functional and efficient, the Panel reasoned that their use would be eased if restated in a uniform document. Secondly, the Report argued that negligence law had experienced a shift in responsibility. At 1.24 the Panel suggests that: “... the present state of the law imposes on people too great a burden to take care of others and not enough of a burden to take care of themselves.” This issue stemmed from the aforementioned concern that liability was too easily established against a defendent. The panel, whilst discussing this concern expressed that in reformation of negligence law, the interest of the individual must be weighed against that of the community. This consideration of the Report reveals that tort law, in paticular the area of negligence, is acutely aware of the needs of society and is quite willing to make reformations for its continued development.

The third issue dealt with by the Ipp Report, was that of establishing medical negligence. Of particular concern was the application of the 'Bolam rule.' The Panel's main concern with this rule, was that it did not provide an appropriate rule with which to test a doctor's reasonable giving of information pertaining to treatment. In addition the panel warned that:

 ... it [Bolam rule] gives too much weight to opinions that may be extreme and held by only a very few experts, or by practitioners who (for instance) work in the same institution and so are unrepresentative of the views of the larger body of practitioners.

The relationship between doctor and patient is extremely important for the cohesion of society. The Ipp Report's recognition that this relationship was in need of reform is evidence to the argument that the law is most certainly not lagging behind medicine.

The most significant outcome of the Ipp Report was the amendment to civil  legislation in most states. In most states the legislation was amended under the Civil Liability Act, or Wrongs Act. Common to these legislative developments are sections that operate to limit liability. For example, s 53 of the Civil Liability Act 1936 (SA), limits who can be awarded damages for either mental or physical injury. It also requires that mental injury must be a recognisable phsychiatric illness. These amendments are an inspired example of how the common law can operate in conjunction with legislation to efficiently and effectively provide a tool for social reform. As mentioned above, the Ipp Report was established due to the recognition that reform in the area of negligence law was required. The proactive operation of the legislative arm of government provided a means for this to occur. Any argument that tort law falls behind social development is confidently rebutted by the outcomes of the Ipp Report.

I N T E R N A T I O N A L  M O D E L S

The efficiency of the law, in particular Australian tort law, can be analysed with comparison to international models. Not only does comparison provoke improvement but it allows one to witness the efficiency of their own system. This section of the study will provide insight into the United States model and to the United Kingdom model. Similar to the structure relied upon above, this section of the study will give context to the international models and will illustrate how the law is used to promote social development and reform.

U N I T E D  K I N G D O M  ( U K )  M O D E L

The position of the UK from the early 80s to through to the late 90s was one not dissimilar to that of the Australian experience prior to the reform of 2002 . It seemed a shift in the traditional doctor-patient relationship had occurred. Patients began to demand explanations for their ailments and to question the ability of their doctors. Since this was a new development in British society, their was little established to deal with medical complaints. A charitable organistaon, Action for Victims of Medical Negligence (AVMA), was independently established to assist patients with their complaints. This is quite an interesting response to the problem, and it is quite different to that experienced in Australia. The AVMA not only assisted aggrieved patients, but worked to educate the legal profession on how to litigate medical negligence cases. It seems quite astounding that this was the case, as one would assume that the British government would move swiftly to take over the proactive role of the AVMA. Simanowitz' statement explains this further:

... it was soon realised that the only way to bring about change was to put pressure on a medical profession complacent about the problem... it was clear that the law was the only effective mechanism for addressing and doing anything at all about these problems.

This statement is effective in explaining how the law can be turned to for the provision of guidance and reform. The UK model, however, did not seem to deal with their problems as efficiently as the Australian government. Failed Bills and disfavoured arbitration schemes where the responses from British government. A suggested reform, and one that will be discussed further, was that of alternative dispute resolution  (ADR). The benefits of ADR is that it

 “allows parties greater control over resolving the issues between them, encourages problem-solving approaches, and provides for more effective settlements covering substance and nuance.”

This approach by the UK seems quite favourable and cost-efficient in comparison to Australia's civil litigation process. It can be observed from this international model that a proactive government is most desirable to initiate law reform. However, it does illustrate that ADR can be an efficient way for aggrieved persons to seek justice.

U N I T E D  S T A T E S  ( U S )  M O D E L

The  situation of the US prior to their tort reform in the 1980s, followed a similar context to that of Australia. An insurance crisis believed to be brought about by the rising number of negligence claims meant that instability was experienced in the medical and professional industries alike. Physicians experienced concern when obtaining professional liability insurance as costs and availability fluctuated. As US tort law is controlled independently by the states, wide-spread reform was needed.

US reform came in two waves. This section of the study will outline four ways in which the US was able to reform the law and in turn assist the development of society. Firstly, similar to the Australian model, amendments to legislation were enacted to limit the award of damages. These limitations were referred to as 'caps' and they effectively reduced the amount of compensation available to an aggrieved party. Secondly, review panels were established to screen claims prior to their hearing in court. This had the potential to cut litigation costs and time. Thirdly, and to similar effect, arbitration bodies were established to provide fast results for negligence claims. Lastly, hospitals and medical practices independently created protocols for the prevention of negligent incidents. Each of these reforms provided complementary assitance for the civil law process. The Australian model may have benefited from such schemes, in that aggrieved parties could have faster access to a result and possible compensation.

C O N C L U S  I O N

The law, in particular the law of torts, is extremely well positioned to tackle the demands of society. Tort law has proven, through the Ipp Report and common law judgment, that it can respond to issues in society that act as barriers for development. As mentioned above, the combination of common law and legislative amendments provide an efficient means for reformation. Kirby J in Cattanach (2003) 215 CLR 1, supports the dynamic nature of the common law:

The common law does not exist in a vacuum. It is expressed by judges to respond to their perceptions of the requirement of justice, fairness and reasonableness in their society.

In this way, Tort law most certainly does not fall behind social development. Rather it permits its progress in a steady and reassuring manner.

                

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B I B L I O G R A P H Y

C A S E S

Cattanach v Melchior (2003) 215 CLR 1.

Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431.

L E G I S L A T I O N

Civil Liability Act 1936 (SA).

R E P O R T

Review of the Law of Negligence Panel, Ipp Report: Review of the Law of Negligence Report, 1, 2 (2002) 11.

J O U R N A L S

Cane, Peter, 'Taking Disagreement Seriously: courts, legislatures and the reform of tort law'  (2005) 25 Oxford Journal of Legal Studies 393 – 417.

B O O K S

Brown, Henry in Simanowitz, Arnold, Law Reform and Medical Negligence Litigation: The UK Position in McLean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) Dartmouth Publishing Company Ltd. England.

Simanowitz, Arnold, Law Reform and Medical Negligence Litigation: The UK Position in McLean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) Dartmouth Publishing Company Ltd. England.

Wadlington, Walter, Law Reform and Damages for Medical Injury in the United States in Mclean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) Dartmouth Publishing Company Ltd. England.

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