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All the quotes were abstracted from the ADF paper titled:
Proposals for Tort Law Reform - 17 JULY 2002 (the full paper is also available on the ADF website)
Prepared by Stephen Milgate for and on behalf of the Australian Doctors' Fund and the Council of Procedural Specialists
The Footnote References on this document were lifted straight from the original paper
"The deficiencies of the law of negligence have now become very apparent. It favours generosity to the plaintiff at the expense (in many cases) of justice to the defendant. It deters those who provide goods and services to the public from taking risks which might be perfectly reasonable to take."
"Some judges seem to strive to find a reason for finding in favour of a plaintiff, particularly if the injuries are serious, so that he or she may receive compensation. In the result, damages are sometimes awarded in cases in which a reasonable and informed person would not have thought that the defendant was at fault."1
Sir Harry Gibbs, Chief Justice of Australia (1981-1987)
"We have allowed the tests for negligence to degenerate to such a trivial level that people can be successfully sued for ordinary human activity."
"When I say 'we', I mean all levels of adjudication, right up to the High Court."2
The Honourable Justice James Thomas, Judge of the QLD Court of Appeal (1998-2002)
"In many respects the law of negligence is the last outpost of the welfare state. Notwithstanding that the system is based on a finding of fault, the practical operation of the law of negligence suggests that an element of welfare state paternalism, driven by compassion, may well exist. Furthermore, on some occasions there may have been inadequate weight given to the principle that an individual should take responsibility for his or her own actions."3
The Honourable JJ Spigelman, Chief Justice of NSW (1998 - )
"Medical practitioners tend to see malpractice cases as involving a moral blight or stigma upon the practitioner concerned. From the point of view of the patient (and most lawyers) however, the issue is usually more basic. It is whether a person who has suffered in some way as a result of medical or hospital procedures will be cast upon the genteel poverty of the social security system or be entitled to recover compensatory damages from the medical practitioner's insurance. To gain insurance, the practitioner must pay premiums. These premiums become part of the costs of medical practice. In this way, all patients bear the cost of, and contribute to, the fund from which are paid damages when things go wrong."4
The Honourable Justice Michael Kirby, Judge of the Australian High Court (1996 - ).
A British legal case in 1856 established that:
"Negligence is about causing damage to another because of a failure to exercise reasonable care; it is doing something that a reasonable person in the class of persons to which the defendant belongs would not do, or not doing something that a reasonable person in that class would do."5
In the case of determining the standard of care, judgements have often relied on the reasoning of J. McNair in Bolam v Friern Hospital Management Committee [1957] WLR 582.
"I must tell you what in law we mean by "negligence". In the ordinary case which does not involve any special skill, negligence in law means a failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said you judge it by the action of the man in the street. He is the ordinary man. In one case it has been said you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not posses the highest expert skill; it is well established that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Mr Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent.
In this case Lord Atkin established the principle which forms the modern test for determining the existence of a duty of care.
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my acts that I would reasonably [sic] to have them in contemplations as being so affected when I am directing my mind to the acts or omissions which are called in question."7
By 1932 the law had established the concept of a duty of care towards one's neighbours.
"Today, for a plaintiff to succeed in an action in negligence, he or she must establish (on the balance of probabilities):
J McNair established what is known as the Bolam test as a determinant of professional medical negligence, although the principles themselves are not restricted to medical negligence cases. The test was further explained by Lord Scarman in 1985 when he stated:
"The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgement." 10
Justice Yong Pung How (Singapore) said that the Bolam test was recognition "that judicial wisdom has its limits".
"A judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement."
He also warned that "excessive judicial interference raises the spectre of defensive medicine, with the attendant evils of higher medical costs and wastage of precious medical resources."13
Recently the Chief Justice of NSW (Honourable JJ Spigelman), has examined the merits of the Bolam test for professional negligence, and concluded:
"Until Rogers v Whitaker some Australian courts had followed the English Bolam test which, in substance, meant that it was not open to a court to find a standard medical practice to be negligent. That test applied not only to matters of diagnosis and treatment, but also to information and counselling.
The reinstatement by legislation of the Bolam test was considered in New South Wales last year in the contest of the adoption of the Health Care Liability Act 2001. This was not done. No doubt it is a matter again under consideration. It represents a principle that could be adopted and which restricts findings of breach. It is difficult to see any other change which will restore balance in those cases that are particularly likely to engage the compassion of the judiciary eg obstetrics cases which always concern injured children, or the tragic side effects that may accompany neurosurgery. There does not seem to be any reason why the Bolam test, if adopted, should not extend to all areas of professional negligence."14
Although a compelling moral argument ie that one should care for one's neighbour as one's self, the duty of care test opens a Pandora's box in legal terms, as Sir Harry Gibbs explains:
"In the leading judgment in that case [Donoghue v Stevenson, 1932] it was said that you must take reasonable care to avoid acts or omissions which would be likely to injure your neighbour, and that in law your neighbour is any person who is so closely and directly affected by your act, that you ought reason to have them in contemplation as being so affected when you are directing your mind to the acts or omissions which are called in question This statement of principle, based as it is on Scripture, is on its face persuasive but it has not provided a basis for the logical development of the law. It indicates that liability depends on a duty of care, but judges (including I must confess myself) have failed to agree on what test should be applied to decide when that duty arises."15
As the Honourable J. J. Spigelman explains:
"In many respects the law of negligence is the last outpost of the welfare state. Notwithstanding that the system is based on a finding of fault, the practical operation of the law of negligence suggests that an element of welfare state paternalism, driven by compassion, may well exist. Furthermore, on some occasions there may have been inadequate weight given to the principle that an individual should take responsibility for his or her own actions."16
The rationale for using the laws of negligence as a tool of the welfare state have been well explained and justified by Justice Michael Kirby.
"Most medical practitioners and healthcare workers are, directly or indirectly, covered for their negligence by policies of insurance. Medical practitioners are usually provided with the very best of defence by a system of mutual insurance. So the burden does not fall (for the most part) on the practitioner himself or herself. It falls upon an insurance fund. It is true that the medical practitioner pays premiums to establish and maintain that fund. As the fund is depleted by claims which are paid, the premiums must increase to replenish it. But it is not the practitioner himself or herself, ultimately who foots the bill. It is the consumer. Inevitably, the bill is passed on to the consumer in the form of medical fees. In this way, the patients themselves contribute, indirectly, to a fund which is there if they can establish liability when things go wrong. This is what judges and those who write the books on tort liability call loss distribution."18
Sir Harry Gibbs explains the injustice of the deep pocket test as follows:
"Some judges seem to strive to find a reason for finding in favour of a plaintiff, particularly if the injuries are serious, so that he or she may receive compensation. In the result, damages are sometimes awarded in cases in which a reasonable and informed person would not have thought that the defendant was at fault."19
Professor Helen Beh, CEO of the Australian Orthopaedic Association:
"The data also shows that at least one third of all claims have little, if anything, to do with medical negligence and that surgeons are shouldering the insurance burden for medical misadventure as well as the burden for medical negligence."22
The hardening global reinsurance market, together with our expectation of continued pressure on claims costs mean that doctors will be facing significant medical indemnity price rises.23
Possibly the most alarming recent survey was that conducted by the Australian Institute of Judicial Administration, a summary of which was published in the Law Society Journal, April 2002. It concluded:
"It would seem from the survey that magistrates do not hold experts totally or even substantially responsible for their misdeeds."
2 The Honourable Justice James Thomas. Judge of the QLD Court of Appeal (1998-2002). Insurance Crisis Blamed on Judges 'Playing Santa'. The Daily Telegraph, Edition 3 - MetroSAT, 23 March 2002, Page 4.
3 The Honourable JJ Spigelman. Chief Justice of NSW (1998 - ). Chief Justice suggests remedies for tort of negligence. Law Society Journal, June 2002. Pg 24
4 The Honourable Justice Michael Kirby, Judge of the Australian High Court (1996 - ). Patients' Rights - Why the Australian Courts have Rejected Bolam (1995) 21 Jnl of Medical Ethics.
5 In Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 Alderson B
6 [1932] AC 562
7 Health Law, Commentary & Materials by Peter MacFarlane. Pg 86
8 Health Law, Commentary & Materials by Peter MacFarlane. Pg 86
9 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
10 Lord Scarman. Sidaway v Governors of Bethlem Royal Hospital. 1985 AC871
11 Bolitho v City and Hackney Health Authority. 13 November 1997.
12 The Retirement of Judge Selvam. Singapore Academy of Law Newsletter. Issue No.74. Pg 14.
13 The Straits Times, 26/4/02, Courts hearing negligence cases 'cannot play doctor' by Alethea Lim, Court Correspondent.
14 Honourable JJ Spigelman AC, Chief Justice of NSW. Negligence: The Last Outpost of the Welfare State. The Judicial Conference of Australia: Colloquium 2002. Launceston, 27 April 2002.
15 Sir Harry Gibbs, Living with Risk in our Society. 14 May 2002
16 Chief Justice suggests remedies for tort of negligence. Law Society Journal, June 2002. Pg 24
17 Chief Justice suggests remedies for tort of negligence. Law Society Journal, June 2002. Pg 24
18 Justice Michael Kirby. An Era of Change. The 1992 National Medico-Legal Congress.
19 Sir Harry Gibbs. Living with Risk in our Society. 14 May 2002.
20 Voluntary Aid in Emergency Act 1973 (Qld)
21 Butterworths Australian Legal Dictionary. 1997
22 Prof Helen Beh, BA, MSc, PhD, FASP. CEO, Australian Orthopaedic Association. Medical Litigation in Orthopaedics: Facts and Figures. The Rise and Rise of Medical Indemnity Costs. Conference 10-11 March 2001, Sydney.
23 Medical Indemnity in Australia. Presented to The Institute of Actuaries of Australia XIII General Insurance Seminar. Gillian Harrex, Karen Johnston and Estelle Pearson. 25-28 November 2001.
24 DN , Dewees, MJ, Trebilcock and PC, Coyte, "The Medical Malpractice Crisis: A Comparative Empirical Perspective". 1991
25 Kirby, JM. An Era of Change. The 1992 National Medico-Legal Congress.
26 Chief Justice suggests remedies for the tort of negligence. Law Society Journal. June 2002
27 Projections of Australian obstetricians ceasing practice and the reasons. Medical Journal of Australia. 6 May 2002
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