Press Release - Minister Announces Review Panel [02/07/2002]
C76/02
2 July 2002
MINISTER ANNOUNCES REVIEW PANEL
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.
(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.