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Legislative Assembly for the ACT: 2003 Week 8 Hansard (19 August) . . Page.. 2864 ..

MR STEFANIAK (continuing):

You made quite clear in your tabling speech that there are two points of the Ipp report that you do not like, thresholds and caps. You have now indicated that that situation will be changing. I understand that five or so states now do have thresholds and caps and there is some difference there. I would be interested to see, particularly, what sort of threshold you are coming at because, like many others, I have had the benefit of briefings from the Law Society and I do wonder just how much of a problem that is. But the ACT, being a small jurisdiction, certainly cannot be an island within New South Wales. I do see the importance, even if it is a psychological importance, of having a cap on damages payouts for non-economic loss.

There are some good points in this bill which I think will advance tort law reform, and I commend the government officials and the people involved in dealing with them for that. I doubt that we will reach the figures for the UK with the without prejudice sorry provision. I was quite amazed to see that 40 to 50 per cent of the cases just wanted someone to say sorry. I hope that that is right, because I think that it is taking a very positive step to have that type of provision in this type of law.

The provisions regarding early notification and open disclosure are also sensible improvements to the law. If this insurance crisis has done anything, it is that it has been a precursor to some good and overdue tort law reform. Again, I think that there are some very good provisions there.

The provisions in relation to expert witnesses are causing some problems. I appreciate the views of the Law Society in saying that if a court has to make a pick at the end of the day and there will be only one witness, a plaintiff judge will go for a plaintiff witness and a defendant judge might go for a defendant witness. Okay, you could understand that; people are only human.

I think that the amendments in proposed new subsection (4) go to improving the bill to some extent in terms of ensuring that the witness, whomever that may be, has to have regard to what a college of their peers regard as common practice, as proper practice, at the time. That is especially important in terms of medical insurance and the medical profession, because doctors often have to make life or death decisions and have to go on what is accepted as best practice at the time.

Accidents, as opposed to negligence, can happen. Operations are not always going to be successful, with the best will in the world and with doctors being as competent as possible. If a tragedy does happen, a patient or the patient's family might well look for someone to sue, although all the doctor was doing was the best one could possibly expect at the time, given current practice. I think the government amendments there are fine. Whilst I appreciate what the Law Society is saying there, I think that, on balance, what the government has with that amendment is an advance and is quite fine.

The statute of limitations has caused all sorts of problems. As I said earlier, I have spoken to a number of doctors who were just so worried about the ability to be sued after 24 years for what they regarded as something which just went wrong, which was an accident, when they did their best and there was no way that one could say that they were negligent. As a result of what has happened interstate, the period has come

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