A View from Abroad

Abstract

The Woodhouse Commission examined common criticisms of common law action for negligence in relation to personal injury. The criticisms included risk of litigation (the uncertainty of outcome); reduction of damages if there was any contributory negligence; long delays before receipt of compensation, if any; high costs of determining who was and who was not entitled; need to find a solvent defendant; adverse effects on rehabilitation; and inappropriateness of lump sum awards of damages to provide for long-term incapacity. The Woodhouse Commission concluded the time [had] clearly come for common law action to yield to a more coherent and consistent remedy in whole area of personal and it recommended that Court action based on fault should now be abolished in respect of all cases of personal injury, no matter how occurring. This article examines continued application of common law of negligence in relation to personal injury in Australia, with particular reference to decisions of High Court of Australia. It demonstrates criticisms made by Woodhouse Commission remain valid 40 years later, and contrasts decisions of High Court with how similar injuries would be dealt with in New Zealand. For pragmatic reasons, Woodhouse Commission confined its recommendations to accidental injuries, and hoped other forms of incapacity could be accommodated later. The later Australian Woodhouse Report recommended extension of compensation scheme to incapacity caused by congenital conditions and sickness, but scheme was never implemented. The failure to extend New Zealand compensation scheme in this way means some of High Court decisions on common law deal with situations on borderline of New Zealand compensation scheme and are likely to give rise to similar problems.