The Premier of NSW, Bob Carr, is on a dangerous path in changing the law of negligence by legislation to make it more difficult for people to sue for damages for personal injury caused by medical negligence as he suggested this week. Earlier he suggested that a similar limiting for people suing charities and sporting bodies and government authorities for personal injury as a means of solving the crisis over public-liability insurance.
We have an insurance problem caused by the confluence of several events: higher reinsurance costs stemming from September 11; the collaspe of HIH insurance following imprudent grabbing of market share through lower premiums which flowed through the industry; a faster clearing of old cases by the courts.
In the wake of these events, insurance companies have increased their premiums substantially. In some cases the premiums have risen to the extent that doctors say they will walk away from their practices. Charities and sporting events have cancelled events.
In the past few months while this has been going on, the easy targets have been the “”greedy” lawyers, a more litigious society and frivolous claims. The majority of solutions suggested have been around cutting down people’s rights to sue.
The trouble with this approach is that under the guise of bringing “”rich, greedy” lawyers to book, many of the most disadvantaged in society will be denied just compensation for injuries they suffer through the negligence of others.
Mr Carr’s approach is to lower the test of negligence by legislation. He said, “”Now a doctor or other professional should need to establish only that what they did was reasonable in the circumstances. The test should not be was there any other possible way this could have been done that might not have caused the plaintiff’s injury.”
Mr Carr seems to misunderstand negligence law. The onus has always been on the plaintiff to establish negligence. If a doctor or other professional establishes what they did was reasonable – in line with best practice – then it will be impossible for the plaintiff to establish negligence in any event.
If this muddled thinking is to be the base of legislative change, the injured people of NSW will suffer and the very lawyers Mr Carr complains about will have a field day arguing about the application of the new rules.
The definition and application of negligence is best left to the courts on a case-by-case basis because human affairs are some complex and unpredictable. Mr Carr’s approach of a statutory constriction of tort law is similar to the misguided attempt to lay down mandatory sentences. Injustice inevitably follows.
Moreover, a state-by-state solution will result in forum shopping and injustice stemming from different results emerging depending on which side of state line the incidents occurs.