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  • 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.

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