The tort of negligence is designed to give citizens of society protection from personal injury damages caused by negligent action of someone else. The reform of negligence adopted from the ‘Ipp Report’ in 2003, have gone too far in trying to decrease the number of negligence claims against professionals. Due to these reforms of 2003, citizens who have legitimate claim to compensation, are now left with less chance to hold a professional liable for the damage caused. The reforms, which now make up the current law, must be again reformed to balance the litigation in favour of no one and to make sure that there are fair and just outcomes in the courts. The Act in question is the Civil Liability Act 2003. Section 22 of this Act focuses on the Standard of care for professionals. This is the section that is in most need of reform, due to its excessive protection of professionals from liability.
2.0 Medicine and the Law of Negligence
2.1 History of Negligence and Medicine
One of the First principles used in this field of the law, was the Bolam principle. In the words of Mr Justice McNair, in his direction to the jury: “[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by responsible body of medical men skilled in that particular art …” Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. This principle made in the House of Lords, was thought by many to apply in Australia. However, the in case of Rogers v Whitaker (1992) the six high court judges concluded that the Bolam principle was not the sole decider in the issue of if standard of care owed to a patient in all things is determined by medical judgment. This was to be the precedent for all cases of its kind to come according to a comment from the high court judges which reads “The decision is an important one, not only because it is the first time the High Court has considered this type of case… there is now little room for doubt in Australia as to the legal principles to be applied in similar cases.”
2.2 The Need For Change
From the early ‘80s claims involving personal injury started gaining popularity amongst society. Although the claims might not have involved professionals a trend was being set that would eventually lead to tort reform in many areas. The area of law involving professional’s e.g. medical practitioners, was reformed in the early years of the 2000’s. The insurance crisis was leading to more and more claims against professionals being lodged with the courts and the Howard government tasked Justice Ipp, with writing a report, detailing; his and the panel of experts he was working with, opinion and recommendations they had about the current law. This led to a chain of reforms in all states, with Queensland implementing the Civil Liability Act 2003 in response to the report.