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[ HOME ]    [ WHAT IS THE LAW OF ‘TORTS’? ]

The Tort Reform Institute Pty Ltd is a consumer activist body that aims to stem the tide sweeping away civil rights from Australian consumers and to return those rights that have already been taken away.

Conceived in 1997, the Institute has since been incorporated.

What does the Institute do?

Governments throughout Australia have since the early 1990s focused attention on looking after corporate Australia rather than the well being of ordinary individuals. What began as a trickle is now a flood of legislation that is aimed at improving the profit position of business at the expense of the citizen.

  • New South Wales: workplace and motor accident victims have virtually no injury compensation rights except in catastrophic cases. Since 2002, this now also applies to injuries inflicted by doctors and hospitals. Civil Liability laws were introduced in 2002 to further exempt reckless enterprises from responsibility for the cost of injury that they cause.
  • Victoria: workplace and motor accident victims have virtually no injury compensation rights except in catastrophic cases. In 2001 through the efforts of organisations like the Tort Reform Institute some workers’ rights were restored by the Bracks labor government.
  • Queensland: the rights of motor accident victims and workers have been under steady attack since 1994. In 2001, through the efforts of organisations like the Tort Reform Institute, some workers rights were restored by the Beattie labor government. Civil Liability laws were however introduced in 2002 to further exempt reckless enterprises from responsibility for the cost of injury that they cause.
  • South Australia: workplace and motor accident victims have virtually no injury compensation rights except in catastrophic cases.
  • Western Australia: workplace accident victims have virtually no injury compensation rights except in catastrophic cases.

The tort reform institute campaigns for the restoration of all rights stripped away from citizens by these laws.

What is “tort reform”?

Unfortunately in the United States in the 1980s, public relations firms acting on behalf of large corporations and insurance interests began to use the term "tort reform" in a perverse way to confuse the public as to the nature of their agenda rather than "reform", the agenda of big business and its allies is regression.

Such interests seek to change the civil justice system by frustrating the administration of justice and advocating the removal or restriction of the public’s access to courts in areas principally relating to compensation for dangerous conduct.

On the other hand various organisations like ours have for a long time been engaged in activism seeking to improve the rights of consumers in this area through law reform principally in the area of consumer torts, as follows:–

  • the winding back of draconian workplace injury compensation laws which were introduced in various Australian states in the 1990s.
  • the review of the law relating to limitations of actions which imposes time limits on the commencement of legal claims in the case of personal injury and death.
  • campaigning for the removal of provisions of the Trade Practices Act which has the effect of preventing workers relying on the product liability provisions of that Act if they are able to receive any WorkCover benefits.
  • reform in some states to allow for dependency claims by de facto spouses and children of a relationship of a de facto spouse.
  • and now – the reversal of the regressive provisions of Civil Liability laws that swept across Australia in the early 2000s.

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What is the law of ‘torts’?

The law that pertains to the general duties owed by persons to others in the community is the law of torts. A tort is a civil wrong arising out of a breach of duty, whether intentional or not. Torts include defamation, trespass, nuisance, assault, deceit, intimidation and malicious prosecution. These torts have their origins in 17th and 18th century England.

Negligence is a further species of tort which was not developed to its modern form until the mid-1900s. The modern law of negligence was articulated in the “neighbour principle” as follows:-

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”.

This statement has been adopted throughout most of the English speaking world including Canada and Australia.

This legal duty to one’s neighbour is nothing more than what ordinary Australians would expect and consider reasonable.

The tort system is also an efficient means of ensuring businesses have adequate incentive to avoid harm to others.

Businesses make day to day decisions as to whether to bear the costs of accident avoidance or take the risk in bearing the costs of injury if a tragedy occurs. The prospect of paying damages and the healthy fear of being sued acts as an economic incentive on employers to undertake accident avoidance.

The absence of injurer incentives to avoid injury risks where no fault compensation schemes apply, is recognised by economists. The New Zealand Accident Compensation Scheme, for example has resulted in an erosion of standards and an escalating injury rate.

The tort system also has features to ensure liability is moderated to reflect only the extent to which the enterprise was the injurer. By the mechanism of liability apportionment businesses are not required to pay damages to the extent of the victim’s own negligence. Thus, there is an incentive both upon the enterprise and upon the victim to take reasonable avoidance precautions.

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