The Minister for Revenue and Assistant Treasurer Senator Helen Coonan today announced the make-up of a high level panel to review the law of negligence in the Government's latest step in addressing spiralling public liability premiums.
Senator Coonan said the four-person panel would provide both legal expertise and an understanding of the issues affecting the community. It comprises persons who are each eminent in their areas of expertise and interest.
"The chair of the panel will be the Honourable Justice David Ipp, Acting Judge of Appeal, Supreme Court of New South Wales and formerly of the Supreme Court of Western Australia," Senator Coonan said.
"Justice Ipp will be joined on the panel by Professor Peter Cane, Professor of Law at the Australian National University, Dr Don Sheldon, Chairman of the Council of Practising Specialists and Cr Ian Macintosh, Mayor of Bathurst."
"While Justice Ipp and Professor Cane will provide significant legal expertise and experience, Dr Sheldon and Cr Macintosh will ensure that the views of medical practitioners and community organisations are fully taken into account."
Senator Coonan said the Panel would be asked to report on a range of aspects of the law of negligence, including:
- Common law principles to limit liability arising from personal injury or death;
- Principled options to limit liability and quantum of awards for damages;
- Proposals for allowing individuals to assume their own risk;
- Options to limit claims of negligence to within three years of an event (ie reducing the statute of limitations);
- Options for a requirement that the standard of care in professional negligence matters, including medical negligence, accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission; and
- Options for exempting or limiting the liability of eligible not-for-profit organisations from damages claims for death or personal injury.
"The Negligence Review Panel has been jointly established by the Commonwealth, State and Territory Governments as one of the measures agreed to at the last Ministerial Meeting on Public Liability Insurance at the end of May," Senator Coonan said.
"Because of the urgent need to address these issues, the Panel will be asked to report on the terms of reference in stages, with the first report to be presented to Ministers by the end of August.
"The Panel will report on the remaining terms of reference by the end of September."
Senator Coonan said the panel would play a key role in informing a coordinated national approach to the problems currently being faced by insurance policyholders.
"Several State and Territory Governments have already started to reform tort law, and the Commonwealth has taken significant steps in its area of jurisdictional responsibility," Senator Coonan said.
"Since the last Ministerial Meeting on Public Liability Insurance, the Commonwealth has introduced legislation to Federal Parliament to amend the Trade Practices Act to allow people who are undertaking risky recreational activities to waive their contractual right to sue.
"I have also introduced changes to the tax laws to encourage the use of periodic payments to compensate negligence victims in place of a one-off lump sum.
"Insurance companies must also act reasonably and responsibly, and the Commonwealth has given the Australian Competition and Consumer Commission an ongoing monitoring role over the next two years to ensure that the insurance industry is adjusting premiums to take into account cost savings.
"The Negligence Review Panel continues the cooperation between Commonwealth, State and Territory Governments."
Senator Coonan said she would meet with her State and Territory counterparts again in September.
Senator Coonan said that the review would provide a platform for Governments to reform the law as it applies to public liability, professional and medical indemnity.
The terms of reference for the panel are attached.
The Panel will accept submissions from the public, and further information about the work of the Panel will be available at http://revofneg.treasury.gov.au in the near future.
TERMS OF REFERENCE
PRINCIPLES BASED REVIEW OF THE LAW OF NEGLIGENCE
BY A PANEL OF EMINENT PERSONS
The award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another. It is desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death.
Accordingly, the Panel is requested to:
1. Inquire into the application, effectiveness and operation of common law principles applied in negligence to limit liability arising from personal injury or death, including:
(a) the formulation of duties and standards of care;
(b) causation;
(c) the foreseeability of harm;
(d) the remoteness of risk;
(e) contributory negligence; and
(f) allowing individuals to assume risk.
2. Develop and evaluate principled options to limit liability and quantum of awards for damages.
3. In conducting this inquiry, the Panel must:
(a) address the principles applied in negligence to limit the liability of public authorities;
(b) develop and evaluate proposals to allow self assumption of risk to override common law principles;
(c) consider proposals to restrict the circumstances in which a person must guard against the negligence of others;
(d) develop and evaluate options for a requirement that the standard of care in professional negligence matters (including medical negligence) accords with the generally accepted practice of the relevant profession at the time of the negligent act or omission;
(e) develop proposals to replace joint and several liability with proportionate liability in relation to personal injury and death, so that if a defendant is only partially responsible for damage, they do not have to bear the whole loss; and
(f) develop and evaluate options for exempting or limiting the liability of eligible not-for-profit organisations_ from damages claims for death or personal injury (other than for intentional torts).
4. Review the interaction of the Trade Practices Act 1974 (as proposed to be amended by the Trade Practices Amendment (Liability for Recreational Services) Bill 2002) with the common law principles applied in negligence (particularly with respect to waivers and the voluntary assumption of risk).
In conducting this inquiry, the Panel must:
(a) develop and evaluate options for amendments to the Trade Practices Act to prevent individuals commencing actions in reliance on the Trade Practices Act, including actions for misleading and deceptive conduct, to recover compensation for personal injury and death; and
(b) evaluate whether there are appropriate consumer protection measures in place (under the Trade Practices Act, as proposed to be amended, or otherwise) and if necessary, develop and evaluate proposals for consumer protection consistent with the intent of the Government's proposed amendment to the Trade Practices Act.
5. Develop and evaluate options for a limitation period of 3 years for all persons, while ensuring appropriate protections are established for minors and disabled persons.
In developing options the panel must consider:
(a) the relationship with limitation periods for other forms of action, for example arising under contract or statute; and
(b) establishing the appropriate date when the limitation period commences.
Report Date
The Panel is required to report to Ministers on terms 3(d), 3(f), 4 and 5 by 30 August 2002 and on the remainder of terms by 30 September 2002.
* A not-for-profit organisation in this context may include charities, community service and sporting organisations.