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Through Legal Eyes
Talking
Tort
Tort law is the body of law that creates, and provides remedies for, civil
wrongs that do not arise out of contractual duties.
A person who is legally injured may be able to use tort law to recover
damages from someone who is legally responsible, or “liable,” for those
injuries. Tort law defines what constitutes a legal injury, and establishes
the circumstances under which one person may be held liable for another’s
injury. Torts cover intentional acts and accidents.
Tort law is always a hot topic in the insurance industry due to the constant
challenges to its boundaries and the repercussions that has for insurance
payouts. We have invited three legal experts to provide overviews of tort
law in their countries – Australia, Canada and the UK.
Australian Perspective
Post-Reform: A relatively level playing field
‘Tort reform’ was the buzz phrase among litigation lawyers and
insurers during the mid ‘naughties’. Spawned by the HIH collapse,
legislative reforms were introduced across the nation to combat the
perceived ‘insurance crisis’ and reign in ‘ambitious’ litigation.
There can be no doubt that the reforms have had a dramatic effect
as far as litigation is concerned. For example, the number of personal
injury claims (including claims for sporting incidents) issued in the
Victorian County Court reduced from 1032 in 2001/2002 to 152 in
2006/2007 (I have chosen these years given they represent periods of
relative stability).
In addition to the legislative reforms (and acting as a further blow
to plaintiff lawyers!) were a number of significant judicial decisions,
which placed the onus back on plaintiffs to take care for their own safe-
ty. A number of decisions during this period made it clear that weekend
‘warriors’ should keep in mind that they were sometimes participating in
dangerous activities and judicial comment was made on more than one
occasion that sporting participants should not expect the average suburban
football field to be up to the standard of a ‘bowling green’.
Things have certainly settled
down since the early reform days and
one senses that the pendulum has
started to swing back in favour of
plaintiffs despite the governments’
refusal to entertain pleas from the
various plaintiff lawyers’ associations
to unwind some of the reforms. Most
recent data suggests that public liability
and medical negligence claims are on
the rise (albeit ever so slightly), which
is perhaps explained by lawyers who
are now familiar with the reforms and
appear to be a little more aggressive
with the types of claims that are being issued.
That being said, I do not envisage a rapid acceleration or spiralling
of claims in the foreseeable future. Absent any legislative wind-back,
which does not appear to be on the horizon at the moment, litigation in
sporting and personal injury claims is likely to remain relatively constant
over the next few years, which points to a period of relative stability within
the public liability claims arena. The playing surface has certainly levelled
out!
David Randazzo is a Senior Associate at the law firm DLA Phillips Fox in
Melbourne.
OUGH
LEGAL EYES
Tort law is the body of law that
creates, and provides remedies for,
civil wrongs that do not arise out of
contractual duties. A person who is
legally injured may be able to use
tort law to recover damages from
someone who is legally
responsible, or "liable," for those
injuries. Tort law defines what
constitutes a legal injury, and
establishes the circumstances
und r which one person may be
held liable for another's injury. Torts
cover intentional acts and accidents.
Tort law is always a hot topic in the insurance
industry due to the constant challenges to its
boundaries and the repercussions that has for
insurance payouts. We have invited three legal
experts to provide overviews of tort law in their
countries – Australia, Canada and the UK.
Australian Perspective – Post-Reform: A
relatively level playing field
'Tort reform' was the buzz phrase among
litigation lawyers and insurers during the mid
' aughties'. Spawn d by the HIH collapse,
legislative reforms were introduced across the nation
to combat the perceived 'insurance crisis' and reign
in 'ambitious' litigation.
There can be no doubt that the reforms have
had a dramatic effect as far as litigation is
concerned. For example, the number of personal
injury claims (including claims for sporting incidents)
issued in the Victorian County Court re uced from
1032 in 2001/2002 to 152 in 2006/2007 (I have
chosen these years given they represent periods of
relative stability).
In addition to the legislative reforms (and acting
made on more than one occasion that sporting
participants should not expect the average suburban
football field to be up to the standard of a 'bowling
green'.
Things have certainly settled down since the
early reform days and one senses that the pendulum
has started to swing back in favour of plaintiffs
despite the governments' refusal to entertain pleas
from the various plaintiff lawyers' associations to
unwind some of the reforms. Most recent data
suggest that public liability and medical negligence
claims are on t e rise (albeit ever so slightly), which
is perhaps explained by lawyers who are now
familiar with the reforms and appear to be a little
more aggressive with the types of claims that are
being issu d.
That being said, I do not envisage a rapid
acceleration or spiralling of claims in the foreseeable
future. Absent any legislative wind-back, which
does not appear to be on the horizon at the
moment, litigation in sporting and personal injury
claims is likely to remain relatively constant over the
next few years, which points to a period of relative
stability within the public liability claims arena. The
playing surface has certainly levelled out!
David Randazzo is a Senior Associate at the law
TALKINGTORT:
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