Reforming Tort Law in Australia: A Personal Perspective
Cane, Peter, Melbourne University Law Review
[For 30 years Harold Luntz has been a major participant in personal injury law reform debates and a passionate advocate of the abolition of tort law and its replacement by a no-fault compensation scheme. The aim of this article is to place the 2002 Review of the Law of Negligence in the wider context of those debates and to assess the prospects for more radical reform of personal injury law in Australia. It also addresses the complex issue of the relationship between tort liability and the cost of liability insurance in the context of the so-called insurance 'crisis'.]
CONTENTS I Introduction II Reform III A Very Short History of 20th Century Debates IV Recent Australian Debates and the Establishment of the Review A Background B Liability, Liability Insurance and the Insurance 'Crisis' 1 What Are Insurance 'Crises'? 2 What Causes Insurance 'Crises'? C Establishment of the Review V The Context and Conduct of the Review A The Terms of Reference B The Time Scale of the Review C The Membership of the Panel D The Review in the Media E The Review as 'Technical' Law Reform F The Review Report G The Aftermath VI The Future
Harold Luntz's tort scholarship is characterised by admirable qualities of its author, including an encyclopaedic knowledge of the law, meticulous attention to detail, utter respect for truth and, perhaps above all, a passionate advocacy of no-fault personal injury compensation schemes. (1) Harold's views about 'reform' (2) of personal injury law deserve respect precisely because they are based on an understanding of the present system that is second to none. However, as Harold has recently written (with typical understatement), the replacement of tort law with a no-fault system in Australia 'is unlikely in the present political climate'; (3) and so for him (and for those of us who share his vision), the real question concerns the best way of promoting the ideal within existing political constraints.
Against this background, the aim of this article is to assess the place of the recent Review of the Law of Negligence (4) in the context of debates about compensation for personal injury that have taken place over the past 40 years in the common law world. My main argument is that, in order to gain a sound understanding of the Review, careful attention must be paid to the political environment in which it was conducted. I also suggest that, although the general ideology of the Review appears, on the surface at least, to be diametrically opposed to that which motivates proposals for no-fault compensation schemes, there is still hope that the force of the well-known and empirically supported arguments against the tort system may yet bear fruit. The fact that there has been so much public debate about the tort system in the past couple of years (albeit of highly variable quality) shows that the issues involved can have great political salience. It is when strong political will and sound policy-making come together that real legal progress can be made.
Before launching into the main discussion, Part II seeks to destabilise the concept of law reform and to replace it with a more complex picture of ongoing debates about the terms of social life and, in particular, about the way in which the costs of illness and disability are dealt with. Part III contains a brief history of modern thinking and policy-making in the area of personal injury law. Part IV examines the genesis of the Review and discusses the central issue of the relationship between tort law and liability insurance. Part V explains certain features of the Review in the context of the political environment at the time. In Part VI, I suggest a strategy for exploiting current dissatisfaction with tort law that offers some hope of advancing the cause of no-fault compensation.
'Reform' denotes change and connotes improvement. …