Tort Law Reform in Australia

Abstract

In the latter part of the twentieth century, amongst common law judges, there was a discernible shift in attitude from being defendant-oriented to plaintiff-oriented. This can, in part, be attributed to legislative change, but also to changing social and economic conditions, which saw a new focus on those injured by the negligence of others. It is also clear that, in the past, judges, when determining liability and awarding compensation, have been substantially influenced by the fact that many defendants possess indemnity insurance. The result has been broad-based loss sharing amongst those required by their circumstances to purchase insurance. This situation has changed, driven in the main by the increasing cost of tort law to the community. These costs are most readily identified in the form of significant increases in insurance premiums. However, no less significant, are the costs imposed on society by undesirable risk aversion in decision-making. The response has been both legislative and judicial, with the Australian judiciary increasingly conscious of the economic and social consequences of its decisions, and emphasising personal responsibility. This paper examines both responses, and questions whether the legislative approach went too far in limiting liability and damages in light of changing judicial attitudes.