• Thomas Faunce, Ruth Townsend, and Konrad Reardon.
• Australian National University, College of Law and Medical School. Fauncet@law.anu.edu.au
• J Law Med. 2010 May 1;17(5):729-35.

AbstractShortly after the start of the new millennium, the Howard Federal Government in Australia was faced with a so-called "crisis" in medical indemnity insurance which may, in fact, have been due to corporate mismanagement. After a four-person review by a committee chaired by Justice Ipp (who currently serves as a justice on the New South Wales Court of Appeal), it agreed to subsidise the indemnity costs of Australian doctors but the quid pro quo was tort law reform legislation in Australian States. That raft of legislation significantly reduced the capacity of people (particularly patients) who were injured as a result of negligence to receive compensation. The new legislative scheme has been criticised as unjust in extra-curial speeches by senior judges involved in hearing civil litigation in Australia. A resulting hypothesis is that, in cases involving this legislative framework, judges might attempt to make it more just through interpretations enabling the recovery of reasonable damages by injured persons. In this column two such cases involving the Civil Liability Act 2002 (NSW) are discussed. The cases in question (Baker-Morrison v New South Wales [2009] Aust Torts Reports 81-999; [2009] NSWCA 35 and Amaca Pty Ltd v Novek [2009] Aust Torts Reports 82-001; [2009] NSWCA 50), though not involving negligence by medical practitioners, are presented as possible examples of judges enhancing justice in the application of this legislation. The importance is emphasised of judges in medical and other civil liability cases highlighting the hardships and inequities this legislation is found to create for injured people, as a necessary precursor to abolition of this scheme and its eventual replacement with a presumptively more equitable no-fault scheme for compensation, particularly for medically-induced injury in Australia.

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