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Criticising Current Causation Principles: Views from Victorian Lawyers on Medical Negligence Legislation
1Law Lecturer and PhD Candidate, Graduate School of Business and Law, RMIT University.
Abstract:
Following medical negligence, plaintiffs can be left with devastating permanent injuries that warrant compensation. These plaintiffs might satisfy a breach of duty of care, yet the statutory test of causation presents a hurdle to successful recovery in meritorious negligence claims. In 2015 reforms, the Victorian government reduced injury thresholds and increased compensation caps but did not address the contentious issue of causation. In this article, drawing on interviews with 24 senior tort lawyers, the issue of causation is examined. The majority of participants in this study expressed the view that causation was one of the most significant issues for litigants in medical negligence proceedings. Analysis of the data shows that the participants believed that causation requirements unfairly prevent plaintiffs from succeeding in meritorious claims. The author argues that the recent legislative changes should have addressed causation and failure to do so represents a lost opportunity to provide litigants with just compensation.
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