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Legislative Assembly for the ACT: 2003 Week 8 Hansard (19 August) . . Page.. 2876 ..

MR STANHOPE (continuing):

the work, the thought and the intelligence that have gone into developing this array of provisions in which we have looked to best practice round the nation and we have looked to take from experience elsewhere those things that we know that work and those things that we know will deliver a result.

Included in this bill is the without prejudice sorry provision, which provides that an apology does not constitute an admission of liability. This provision should reduce the number of claims that are pursued and has the full support of the AMA and the Law Society.

The early notification and open disclosure provision will put an obligation on legal practitioners to notify doctors or other defendants within 90 days of a client's instruction to proceed. The procedures in the bill provide for full disclosure of all relevant material and facilities cooperation at an early stage between the parties. These elements assist both parties by enabling management of cases outside the court system and early settlement of cases at a lower cost. These provisions are modelled on successfully implemented procedures in Queensland.

The reasonable prospects of success provisions require legal practitioners to certify that the cases have a reasonable chance of success. These provisions will ensure that parties do not incur costs for claims or defences that have no reasonable prospects of success. These provisions have been carefully drafted to ensure that the court can allow meritorious claims.

Turning to partial codification of the law of negligence, I believe that it is desirable to codify the law in this area in order to provide an accessible, accurate statement of the present law. These provisions are based on those in New South Wales and those proposed in South Australia. The ACT Law Society has indicated these provisions are a reasonable effort to reflect the current state of the law.

The bill provides that the court may reduce a plaintiff's damages by 100 per cent for contributory negligence. The bill recognises that there will be rare cases where the plaintiff's responsibility for their injuries are so great that it is fair to deny the plaintiff any damages at all.

The bill confirms that an award of damages for mental harm does not include mere sadness. This is to prevent what appears to be early signs of the courts developing a new head of damages for mere sadness.

The new provisions on expert witnesses in chapter 3C of the bill have been devised as a cost efficient alternative to the burgeoning practice of hiring competing expert medical witnesses, who now constitute an emerging industry on the respective plaintiff and defendant sides in litigation. This reform should remove some of the adversarial process from personal injury cases as it will provide for medical experts to assist the court rather than their respective parties. This regime will also reduce costs in litigation as parties share the cost of one medical expert rather than having at least one medical expert for each party. As I said, Mr Speaker, the bill has been carefully drafted to ensure that the courts can appoint additional experts if evidence is required on two or more matters, and they may appoint additional experts if that is considered to be in the interests of justice.

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