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Justice Kirby enters tort reform debate


Cite as: (2005) 79(4) LIJ, p. 14

Concerns raised by High Court Justice Michael Kirby about the impact of tort law reforms on safety standards was a significant contribution to the debate, according to Law Institute of Victoria CEO John Cain.

“It is significant that someone of the status of Justice Kirby is raising these issues,” Mr Cain said.

“It is another voice to a number of voices now that are raising concerns about the extent and impact of the tort law reform agenda that has been run across the country for the past three to four years.”

Justice Kirby has warned that “we have to be very careful in endlessly pushing the notions of ‘personal responsibility’ forward, in court decisions and legislation”.

“We have to beware that we do not remove entirely the role of the common law as a standard setter for carefulness and accident prevention in our society,” he said at the launch of the 2004 Annual Review of Insurance and Reinsurance Law in Sydney on 23 February.

Justice Kirby also said that while entitlements for people who suffered damage were rolled back in the name of personal responsibility, “we have to be careful that we do not reject just claims and reduce unfairly the mutual sharing of risks in cases where things go seriously wrong”.

Law Council of Australia president John North said Justice Kirby was “echoing our fears that insurance is becoming Clayton’s insurance – that premium payers are still paying high rates, while on the other side of the equation thousands of reasonable and genuine claims are denied because of so-called tort reform”.

Under the tort law reforms introduced in October 2003, people injured in Victoria cannot seek damages for pain and suffering unless they have a “significant injury” – either 5 per cent whole personal impairment generally or 10 per cent for psychiatric injuries.


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