Page 2708 - Week 09 - Wednesday, 26 September 2007
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exponential professional indemnity costs and the spectre of bankrupt doctors. Of course, none of this has eventuated. Since then, this government has moved to implement significant tort law reforms that ensure that doctors are not faced with frivolous medical malpractice claims, and that only genuine, legitimate cases of medical negligence are compensated. These reforms have ensured that damages awarded in negligence cases are reasonable and in proportion to the damage awarded.
Unlike other jurisdictions, this government went further and introduced unique tort law reform mechanisms that now provide the best protection for the rights of medical practitioners in Australia. The ACT does not need Mrs Dunne’s proposed new law because the safeguards are already in place. Under the government’s negligence system, it would be inconceivable for a party to succeed in relation to a wrongful birth claim unless the elements of negligence were proven. The safeguards are there. This Assembly does not need to act further, knowing that the courts will come to a fair and reasonable decision in light of the laws already in place.
As long as women and men are fully informed about the potential for the failure of sterilisation procedures, only a relatively small number of negligence advice cases would arise in the future. In those cases where the medical procedure itself fails, the reforms are in place to ensure that only genuine cases of negligence are compensated.
This bill is plagued with a whole range of ambiguities. The wording of the bill is unclear when it talks about the court being able to award damages for “additional” costs associated with rearing a disabled child. This is a vague and unhelpful term that sends the wrong message to the courts. The government’s reforms that are already in place provide ample guidance to the courts to determine fair and reasonable damages in medical negligence cases. Mrs Dunne’s explanatory statement creates further uncertainty as to whether the bill allows damages for the birth of a disabled child in contract or under statute.
If this Assembly were to accept Mrs Dunne’s bill and change the law it would send the wrong message to our community, the medical profession and our hospitals. It would send the message that doctors can act negligently, can breach their duty of care, cause harm to their patients and not be accountable or liable for the damage that they cause. That is the matter of principle that is at stake in this debate today. This is bad law and for this reason the government will oppose the bill.
MR MULCAHY (Molonglo) (4.04): I welcome the opportunity to speak in support of my colleague’s bill, the Civil Law (Wrongs) Amendment Bill 2005. Clearly, this is a topical and controversial subject but it is my intention to approach my remarks in support of this legislation from a balanced point of view. There are sound moral and legal reasons to support this bill. I firmly believe that the creation of human life should not be considered wrong and that the birth of a healthy child should not be the basis for claiming damages. In addition to my moral beliefs, this position is backed up by sound legal reasoning.
I would have liked this legislation to have been retrospective and to have extinguished all possible claims of this nature, but the constitution and the self-government act do not make that possible, and this bill specifically deals with prospective matters. I have
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