• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  • Level: GCSE
  • Subject: Law
  • Word count: 3365

LAW OF TORTS II

Extracts from this document...

Introduction

LAW OF TORTS II Major Essay "Law marching with medicine but in the rear and limping a little" Mt Isa Mines v Pusey (1970) 125 CLR 383, 395 (Windeyer J). The law is often described as falling behind social development, is this appropriate? Critically assess the law of torts in general (with a specific focus on negligence) as a tool of social reform. You may want to consider the Ipp Report and subsequent legislative amendments in your answer. A B S T R A C T Although the law may be seen as protracted and cumbersome, it is quite capable of proactively responding to shifts in social development. The function of the legislature allows for the proactivity of the law to operate. The recent development of tort law, particularly in the area of negligence, is evidence to this. One is able to observe law marching with social development through the Australian Ipp Report and through recent case law precedent. This study will draw directly on the circumstance of Australian society prior to the Ipp Report and will further scrutinise the legislative amendments resulting from it. Some investigation of overseas models will also be presented to assist in illustrating that the law is an adequate tool of social reform. C A S E L A W D E V E L O P M E N T : The development of society and the consequential shifts in moral values are occasionally reflected in case law. In recent years this has become particularly so in negligence law. Medical advancement, particularly in the area of fertility, has presented society with challenging ethical dilemmas. Some so contentious that the law is called upon to pass judgement. It is the adjudicating role of the law that illustrates how useful it can be, not only for assisting social development, but reform. This section of the study will present two cases: Cattanach v Melchior (2003) ...read more.

Middle

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.12 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.13 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. ...read more.

Conclusion

11. 8 Review of the Law of Negligence Panel, Ipp Report: Review of the Law of Negligence Report, 1, 2 (2002) 11. 9 Review of the Law of Negligence Panel, Ipp Report: Review of the Law of Negligence Report, 1, 2 (2002) 13. 10 Review of the Law of Negligence Panel, Ipp Report: Review of the Law of Negligence Report, 1, 2 (2002) 15. 11 Review of the Law of Negligence Panel, Ipp Report: Review of the Law of Negligence Report, 1, 2 (2002) 15. 12 Review of the Law of Negligence Panel, Ipp Report: Review of the Law of Negligence Report, 1, 2 (2002) 25. 13 Civil Liability Act 1936 (SA) s 53. 14 Simanowitz, Arnold, Law Reform and Medical Negligence Litigation: The UK Position in McLean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) 119, 121. 15 Simanowitz, Arnold, Law Reform and Medical Negligence Litigation: The UK Position in McLean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) 119, 123. 16 Simanowitz, Arnold, Law Reform and Medical Negligence Litigation: The UK Position in McLean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) 119, 121 - 122. 17 Simanowitz, Arnold, Law Reform and Medical Negligence Litigation: The UK Position in McLean, Sheila A.M, Law Reform and Medical Injury Litigation (1995) 119, 136 - 138. 18 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) 119, 140. 19 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) 89, 90. 20 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) 89, 91. 21 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) 89, 93. 22 Cattanach v Melchior (2003) 215 CLR 1, 40. ?? ?? ?? ?? ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our GCSE Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related GCSE Law essays

  1. Marked by a teacher

    Law of Evidence - R v Kearley

    5 star(s)

    It is the non-statement of facts in this case, which led their Lordships in the majority to the wrong conclusion. They needed to consider the true nature of these statements as a request and not declaring an implied assertion that the appellant was a drug dealer.

  2. Marked by a teacher

    Law - Resulting trusts

    4 star(s)

    proceedings in Northern Ireland.27 It states that the rule of when a mother makes a gift to a member of her family she retains the property by way of a resulting trust is outdated and discriminatory and it required removal.

  1. Study the concept of Reasonable man and reasonability in tort law.

    CHAPTER 2 Reasonable man and Tort of Negligence In this case as it is with so many aspects of English law it is not possible to track down authorities precisely stating the law.2 The starting point can be considered to be the dictum of Alderson B, in the case Blythe v Birmingham3 water woks.

  2. Explain the need for discipline in at least two public services. Analyse the role ...

    patterns of persistent offenders and targeting them, we have made significant in-roads into reducing certain types of volume crime. Giving evidence: This would be when for example a witness of a crime acts as a witness in court and gives evidence.

  1. The Law Relating to Negotiable Instruments

    But a notice by a stranger is a mere nullity for a valid notice can be given only by a parson who is liable on the instrument at the time of the notice or by his agent. Notice of dishonor to the acceptor of a bill or to the maker

  2. In the context of the theoretical proposition on the issue of law and morality, ...

    Although suicide and euthanasia is outlaw precedents has shown that when the question arises the courts has accepted that competent adult patients have the right to refuse further life sustaining treatment even if the eventual outcome is death. In the United States this was seen in Cruzan v Director, Missouri

  1. LAND LAW

    The House of Lords held that she did not have such an interest in the property, but the case laid down the general principles for the creation of what is known as the common-intention trust. Lord Diplock stated that where there was an express agreement between the parties that the

  2. It is a matter of record there is no such thing as a right ...

    of confidence, so as to be able to cultivate newer areas, and thus extend the range of issues where this can operate. Interpreting the articles it can be seen that these rights are competing rights therefore they appear on either side of the spectrum.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work