Legislative Assembly for the ACT: 2003 Week 7 Hansard (24 June) . . Page.. 2246 ..
The dynamic nature of the civil law would be significantly dampened, as the bulk of court decisions would concern the new statutory provisions in other states. In addition, there is the possibility that a significantly different civil law could lead to some sectors of the work force, and insurers, leaving the ACT market.
There are two fundamental areas of the Ipp report that the Treasurer and I have persistently opposed and have not included in this bill. These are recommendations that there be a threshold of 15 per cent of the most extreme case before plaintiffs can seek redress, and that there be a cap on general damages of $250,000.
A threshold of 15 per cent of the most extreme case would typically exclude people with soft tissue injuries, which heal relatively rapidly, from recovering damages. Capping general damages at $250,000 would set an upper limit on the amount that could be awarded for pain, suffering, loss of amenities, and loss of expectation of life. This upper limit may prevent some plaintiffs from being fully compensated for their injuries. I am opposed to caps and thresholds that sacrifice the fundamental principles of the law, such as equity and equality before the law.
The bill includes a range of reforms that I will now take members through. The bill provides that an apology does not constitute an admission of liability, and will not be relevant to the determination of fault or liability in connection with civil liability of any kind. This amendment was recommended by the Neave report, specifically for medical negligence cases. if people are treated appropriately at an early stage immediately following the occurrence of an adverse event, the whole process of litigation can often be avoided.
A study in the United Kingdom in 1999 entitled "Mediating medical negligence claims-an option for the future?"highlighted the benefits of apologies in medical negligence cases. This study found that, in 44 per cent of medical negligence cases, the plaintiff was litigating to receive an apology, rather than for compensation.
The bill requires legal practitioners to notify doctors or other defendants of a client's instruction to proceed with a personal injury case. This provision promotes early notification of claims, and open disclosure. This provision will allow early investigation of claims, while evidence is still fresh; it will allow appropriate cases to be managed outside the court system, and will allow compensation to be made available much earlier and at a lower cost.
The bill establishes a new regime for expert witnesses. Under the new regime, medical experts will be sanctioned and appointed by the court. A list of medical experts will be obtained from the College of Surgeons. The parties will be given the opportunity to nominate and agree on one medical expert witness. If agreement is reached, the parties brief the expert and the parties pay equally. If the parties cannot agree, the court will appoint an expert, and the parties will share the cost.
This new regime should remove some of the adversarial process, as it will provide for medical experts to assist the court, rather than their respective parties. This regime will also reduce costs in litigation, as parties will share the cost of one medical expert, rather than having at least one medical expert for each party.