I. Introduction
Reforms in the area of tort law have been implemented over the years to help place the rule of law in a better position to maintain social order. In the context of the Australian setting, the Ipp report known as the “Review of Law Negligence” is among the initiatives to attain the said objective. The said proposal provided several improvements in the area of tort law through principled means. This triggers the pursuit of the Australian government to start the reformation regarding the laws of tort in the country, in the case of the noted Ipp report; the principles of negligence are reviewed. This study will critically analyse said report. Specifically, the discussions in this paper are going to constitute the issues on medical negligence. In so doing, the concepts of duty of care, breach of duty, and causation will be taken into consideration. Moreover, the principle made in the Bolam case will also be accounted to illustrate the changes that the review intends to impart on the said area of law. Specific courses of actions made by the state of Western Australia will also be tackled to see the state is doing its share in the reform initiatives provided for by the federal state. The major sources of the arguments used in this study will be taken from Australian/Western Australian cases, law journals, the Civil Liability Act (WA) 2002, and the manuscript containing the final report of Review of the Law of Negligence.
II. The Australian Setting
In an article made by (2005), she indicated that since 2002, the Australian tort system has been under a public liability crisis and even characterised as out of control. This has been triggered by the numerous negligence cases that were ruled in favour of the plaintiffs. This phenomenon made the companies dealing with medical indemnity protection under stress. As (2005) pointed out, there were a major insurance company and a leading medical indemnity insurer to close down because of these events. This set off an impetus to generate the Ipp report “Review of Law Negligence.” The following discussions will present the suggestions for reform indicated in the report.
A. Standard of Care
As indicated in the earlier discussions in this paper, the principles of negligence lie heavily on the standard of care present in the case. The Ipp report has similarly taken into consideration the issues concerning standard of care that has been rather affecting the Australian setting. Though it appears that the proposals made in the reports regarding this matter of negligence, it basically is merely a restatement of the said aspect of law. Apparently, Honourable David Andrew and his colleagues have deemed it important to give emphasis to specific ideas and principles that has been disregarded by far by the courts of the states within the past years. (2005)
Based on the claims in the report, the Australian legal system considers a couple of elements that constitute negligence. One component of negligence is foreseeability of the risk of harm while the other is what the report claimed as the negligence calculus. e, 2002, 102) Within the definition of the negligence calculus, four elements composed it. One is the possibility that the harm would take place if a certain amount of care was taken. Another element is the possible seriousness of the harm. The third element is the onus of acquiring the responsibility of that harm. And the last element took into consideration the social utility of the activity that caused the risk. Looking closely, these elements of the negligence calculus equates to the execution of the Bolam test. The report implied that there are specific elements of the negligence calculus that is being paid no attention to while some may have similarly been overly accentuated over the years. Specifically, the report implied that the element constituting the possibility of the risk is being overstressed by courts. In the same way, the report further noted that the foreseeability element of negligence acquires the same overemphasis. (p 103)
This trend of negligence and overemphasis may have been triggered by a particular precedent in a 1980 case. The said case had a judgement indicating that an individual be held legally responsible if he/she failed in meeting the necessary precautions especially if it is “farfetched.” (Wyong Shire Council V. Shirt (1980) 146 Clr 40) The said case also claimed that with such far-fetched precautions the defendant may not be held liable even if the risk was foreseeable.
This is further reflected in the report indicating that the judiciary may have frequently used the principles of the said precedent in such a way that the entire negligence calculus is taken for granted. (Review of the Law of Negligence, 2002, p105) More particularly, the elements of the negligence calculus that complement the objective of the courts to establish that the risk is not farfetched are considered. The report further noted that this occurs predominantly on the lower courts. The report suggested a restatement of the existing precedent by substituting the word “farfetched” with “not significant.” This shows that the report tried to appeal to the materiality of the risk to the case. Moreover, the proposal indicated an augmentation in the level of possibility regarding the risk in the case, basically higher than that offered by the phrase “not farfetched.” (p105)
The report further recommended (Recommendation 28) that the courts should refrain from considering a person fully negligent just because he/she failed to take precautions in preventing the foreseeable risk. Moreover, the report indicated that when using the Bolam test, the calculus of negligence should be taken into consideration fully. (Review of the Law of Negligence, 2002, p107) This means that the entire four elements indicated above should be tested towards the implementation of the test.
B. Causation
Another element of negligence discussed in the report is the issue of causation. The report indicated that there are a couple of components that constitute the causation, factual causation and scope of, 2002, 114) With the plaintiff having the onus of proof he/she have to establish the said elements. The first one (factual causation) constitute establishing whether the negligence was indeed the root cause of the harm that took place. The scope of liability on the other hand takes into consideration the common issues relating to whether the consequent harm was indeed under the legal responsibility of the defendant. However, it must first be established that the supposed negligence was indeed under factual causation. (p 114)
The discussion on causation has also taken into consideration the concept of proximate cause. 2002, 111) Specifically, the said concept is used to gauge whether the negligence was an indispensable element that triggered the harm. The report indicated that the use of testing for the proximate cause may be used to establish the factual causation of the case. However, the report provided a qualification regarding the use of such a test to only “appropriate cases.” (p110) It is in these appropriate cases that the testing for proximate cause would establish a factual causation for the case.
Moreover, the statements made by the plaintiff may be used to determine the factual causation may be admissible. Specifically, it is only when the statements are relevant particularly when seeking to determine what the plaintiff would have done if the defendant has not been negligent. As subjected to the relevant circumstances surrounding the case, the claims and statements made by the plaintiff would be excluded especially after suffering the harm. ( 2002, 114)
In looking at the claims of the report on the causation principles, the implementation of the suggestions and recommendations may be criticized to expand the interpretation of the common law. Instead, one may look into the fact that the proposal to use the test for proximate cause seeks to provide greater concentration on the part of the courts.
C. Negligence
The discussions on the issue of negligence in the report generally constitute medical negligence. The proposals in this category have received a lot of flak from its critics because of the intention to change the established decision pertaining to medical negligence in the country. This means in the implementation of the said proposals in this category, the courts will have to consult with the existing precedents held in the 80s and 90s as held in the common law in the Australian setting.
The report claimed that a medical practitioner is considered negligent if the courts find the opinions of his/her peers (other respected practitioners) unreasonable. , 2002, 41) However, if the said practitioners verified that the treatment was indeed the most logical and prescribed course of action at the time, the medical practitioner is not considered negligent. Similarly, medical practitioners who are in what is considered medical research and cutting edge medical practice are protected provided that the course of action carried out by the said practitioner is in concurrence with the opinions of the other medical practitioners consulted by the courts. (p42) It also emphasized that a specific opinion coming from the consulted practitioners may be considered “widely held” without the general acceptance of all (unanimous) the consulted practitioners.
This recommendation made by the report basically places the Bolam test as the foremost tool in medical negligence cases. As stated in the Bolam rule, a medical practitioner is not negligent if their actions are taken in concurrence with the prescribed medical conduct at that time. The appropriateness of the medical actions is often determined by consulting a considerable collection of medical opinions.
The treatment of the Bolam principle was disregarded by a legal precedent in a 1992 case. (Rogers v Whitaker (1992) 175 CLR 479) In this case, the court held that it is their commission to decide whether a standard of care is appropriately conducted in the case. Nevertheless, they have similarly accepted that a set of opinion provided in the “relevant profession or trade” as imperative in such cases, the courts will have to decide in the end on whether the action was just.
In looking at the relationship between the said cases and the report, it appears that the difference between the actual treatments carried out by the defendant and the information regarding the treatment as stated by the opinion of other practitioners in the same field. Thus, in the recent precedent provided, the proof that the medical practitioner has indeed carried out the prescribed standard of care weights more than the information provided by expert witnesses. This is also taken into consideration in the case of Naxakis v West General Hospital (1999).
Therefore, a considerable change is required by the implementation of the report. It is no longer up to the courts to decide the appropriate standard of care in negligence cases. The case would then be based on establishing whether the medical practitioner acted in line with what is considered “widely” accepted practice. The court’s commission in such cases will also constitute to establishing that the stated “widely” accepted practice is not “irrational.”
Looking in the section indicating this form of negligence in the report, it appears that the focus is basically on the medical field. The proposals indicated in the report covers predominantly the issues held by medical practitioners. However, the event that a more comprehensive application of the report would be implemented would be a decision coming from the government itself. 2002, p 43) When individual states do decide to include all professionals in the coverage of the report, then it is essential that the tests should be rephrased. (p43)
III. Conclusion
The Ipp report discussed above is basically a response to the apparent crisis that the medical sector and their insurers were experiencing. The implementation of the recommendations in this report would provide protection for both doctors and nurse from any spurious claims of medical negligence. In the case of Western Australia, the Civil Liability Act 2002 has been ratified to address the damages and volunteer liability in the context of negligence. Similarly, a improvements and amendments to the same Act was presented in the parliament of Western Australia in 2003 with the intention of controlling the insurance crisis indicated in the earlier part of this study. Consequent effect may be anticipated changes in the attitude of the public towards the liability of the risk involved in the medical setting.
In the said amendments, principles on negligence and contributory negligence are taken into consideration. In the same way, other elements such as the protection good Samaritans and damages for mental health is given importance. The Ipp report discussed above served as an impetus to trigger the initiative in implementing all these changes and other reforms in the tort system in Australia.
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