Medicine and the Law of Negligence

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1.0 Introduction
The tort of negligence is designed to give citizens of society protection from personal injury damages caused by negligent action of someone else. The reform of negligence adopted from the ‘Ipp Report’ in 2003, have gone too far in trying to decrease the number of negligence claims against professionals. Due to these reforms of 2003, citizens who have legitimate claim to compensation, are now left with less chance to hold a professional liable for the damage caused. The reforms, which now make up the current law, must be again reformed to balance the litigation in favour of no one and to make sure that there are fair and just outcomes in the courts. The Act in question is the Civil Liability Act 2003. Section 22 of this Act focuses on the Standard of care for professionals. This is the section that is in most need of reform, due to its excessive protection of professionals from liability.

2.0 Medicine and the Law of Negligence

2.1 History of Negligence and Medicine
One of the First principles used in this field of the law, was the Bolam principle. In the words of Mr Justice McNair, in his direction to the jury: “[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by responsible body of medical men skilled in that particular art …” Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. This principle made in the House of Lords, was thought by many to apply in Australia. However, the in case of Rogers v Whitaker (1992) the six high court judges concluded that the Bolam principle was not the sole decider in the issue of if standard ...

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... own peer support, it will all be decided by a body who will determine is he/she did have peer support/made the standard of care outlined in s22. This will make sure that the decision on standard of care is fair, as it is with an expert body of opinion on the matter.

4.0 Conclusion
In summation, the reforms suggested by Justice Ipp in 2002 have gone too far in reducing personal injury claims. The 3rd recommendation of the report has protected professionals, especially those in the medical field extensively. Reforms should be introduced as discussed in order to bring the balance of litigation away from the defendant and should give the citizens of society more of a chance to claim for their damages caused by professionals. These changes reflect the current needs of society and would have legal backing far and wide all around Australia if they went ahead.

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