Tort law reform steaming in Australia.

2002 has seen a frenzy of tort law reform in Australia.

Prompted by a combination of the collapse of a major insurance company and a medical indemnity insurer and by spiralling premiums, state governments around Australia have introduced some far-reaching reforms of tort law. While some states already have enacted legislation, the federal government's response was to set up an inquiry looking at a wholesale reform of tort law. The first stage of the federal government's Review of Negligence (Review), as it is called, was released in early September. Its recommendations, if implemented, will have a significant impact on product liability and medical negligence claims. While the recommendations focus on personal injury and death claims, some of the proposals also will be relevant to property damage and economic loss claims.

The second report, scheduled for release in late September, will consider:

* the basis for assessing damages;

* proposals to allow self-assumption of risk to override common law principles;

* proposals to restrict the circumstances in which a person must guard against the negligence of others; and

* the replacement of joint and several liability with proportionate liability in relation to personal injury and death.

While focussed on medical negligence law, the recommendations in the first report are a strong indication of how far the second report might go in reforming tort law.

Product liability under TPA

Section 52 of the Trade Practices Act (TPA) and the equivalent state and territory legislation deals with misleading and deceptive conduct in trade or commerce. Thus far, with the exception of product liability claims, it has not been used often for claims in relation to injury or death. However, with the other limits on liability proposed by the Review, it may become a more attractive route in the future. To make sure it cannot be used as an alternative to a traditional negligence claim, the Review recommends amending the TPA to prevent such claims, either by individuals or by the Australian Competition and Consumer Commission on behalf of groups of individuals.

The Review also suggests that its recommendations limiting claims and the quantum of damages, which will be discussed in the second part of the Review, apply to claims for negligently caused injury or death as a result of breaches of the provisions of the TPA dealing with Product Safety and Product Information (Part V Div 1A), Manufacturers and Importers...