‘Negligence: the Last Outpost of the Welfare State’

It is a good idea for the state to exhibit paternalism to civilians, however, when it goes to the extent of civilians being totally dependent on the state to ‘protect’ and ‘look after’ them, problems arise. This idea is paralleled to the tort system which is dominated by pro-plaintiff decisions. Judges tend to ‘look after’ the plaintiff, hence the injured, to claim damages from the defendant, consequently insured. Not that these decisions are unjust, yet it exposes the community attitude of shifting the blame to the more ‘well-off’ of the society, hence the ones who are covered by insurance. This concept can be exemplified through Siobhan and Elise when they try to claim damage from various parties including employees whom their

Due to the trend of the court decisions, individuals often litigate against the insured to claim damages for their loss. This resulted in the comment by Spigelman CJ suggesting individuals often resort to take legal actions against others through negligence, the fault-based tort system. Problems arise when decisions are often pro-plaintiff and damages are awarded too frequently and of too high an amount. Although judges are reversing the trend and possible solutions to problems are suggested, the tort system will not be perfect in the short-term. The reform will take time to establish. Therefore, the balance in the tort law system can be viewed as a long-term goal.

The most effective method according to Spigelman CJ is one based on principles. It aims to reduce liability and damages with “universally applicable principles” . Although this reform will take time to settle, Spigelman CJ believes it will “receive broad community acceptance” as it is fairer than the other possible solutions.

An alternate method is the imposing strict liability to all kinds of negligent act. As oppose to the view of McHugh J suggesting the tort system nowadays has developed to a state of trying to impose standards similar to ‘strict liab

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