Tort Law of Negligence in Australian Healthcare

Running head: HEALTHCARE
Healthcare
Name of the Student
Name of the University
Author Note

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Introduction
Tort law aims towards addressing solutions for civil wrong doings that are not
generated from contractual obligations. An individual who suffers from the legal damage is
eligible for using tort law in order to get compensation from the accused person who is
legally found responsible for his or her harm or liable for those injuries (Best, Barnes &
Kahn-Fogel, 2018). In other words, it can be said that tort law defines what constitutes a
process of legal injury. It helps in the establishment of circumstances in which an individual
might be hold responsible for another person’s injury or loss. Tort law spans intentional and
negligent acts. The main purpose of tort’s law helps in compensating the victim, second is to
punish the person who has been found guilty for the wrong doings and the third is to prevent
the harmful activities (Best, Barnes & Kahn-Fogel, 2018).
The following essay aims to tort law of negligence under the perspective of the
Australian healthcare system. The essay will begin by providing a brief overview of the
development and application of the tort law followed by description of the Tort of negligence
and is application in Australian Healthcare with a detail mention of duty of warn. At the end,
the essay will highlight the standards of care of the healthcare professionals as per the
guidelines of the Australian legislation.
Development and Application of Tort Law
There is a fine line of defence between tort and crime. Tort is handled in civil courts
while crime cases are taken to criminal courts. A person found guilty in tort law (tortfeasor)
is required to provide liquidated damage compensation. In criminal cases, criminal or
offender is punished and these are non-compoundable unlike the tort law. Tortlaw was first
established in Rome. The Roman law had provisions for torts and it is in the form of delict.

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This form later influenced civil jurisdictions in the continental Europe. However, a specific
body of law in the common law lead to the generation of English tort law (Best, Barnes &
Kahn-Fogel, 2018).
Tort Law in Australia consists of both common law and legislation. A tort is defined
as civil wrong other than breach of contracts. Torts are used upon by the private individuals
against other private individuals or state to highlight the incorrect code of conduct or wrong
deed done by the accused. There are different kinds of torts and these generally derive the
overall legal status from common law. Since it is the duty of the court the define an existing
tort or even helps in the recognition of new torts with the help of common law, tort law is
regarded as limitless law and can be easily modulated based on the prevailing circumstances.
Torts are not specified within any specific statues or legislation. The evolution of tort law
occurs through judge-made law or common form of law. Each state has their own statutes to
overrule the common law mainly in the domain of negligence, domain of personal injuries
and defamation(Stickley, 2016). Australian tort law is mainly influenced by the common law
of the other countries. The influence comes from the United Kingdom, by virtue of its
colonial heritage of Australia. However, during the course of time, modifications have been
done based on various statutes like Civil Liabilities Acts. The basic motive of the tort law
remained same thought, that is protecting people from wrong deeds by others and provide the
claimants a right to sue for the compensation or possibly an injunction in order to restrain the
conduct. Just like any other criminal laws. Laws creating torts have normative or regulatory
influence overthe conduct of the society(Tushnet, 2017).
Tort of Negligence
The tort of negligence is popularly cited as Law of negligence and limitation of
liability act 2008. The act of negligence is highlighted in the domain of duty of care,

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remoteness and causation, defences, psychiatric injury, economic loss(Mulheron, 2016). The
preliminary function)is the act is:
A. To amend and then consecutively reform the common law of negligence -------
(i) To give the issues of illegal activity and intoxication should be taken under consideration
under specific claims in respect to personal injury or death
(ii) To bestow that an apology letter does not constitute an admission towards the liability in
any civil proceedings where a person has encountered injury or died
(iii) To secure the good Samaritans providing proper assistance, along with advice or care
during the time of medical emergencies from the prospect of civil liabilities for their actions.
(iv) To deliver waivers permitting assumptions of risk by self and choosing to take part in the
inherently risk activity
(Australian Government Federal Register of Legislation, 2019)
Under the domain of negligence of the Tort Law, damages include any form of
monetary compensation, harm specifies death or injury or economic loss. Injury signifies
bodily injury like pre-natal, psychology, physiological or disease. Negligence means failure
to exercise proper care. Under the duty of care of the healthcare professionals in the domain
of the Tort Law Negligence, the Australian rule book states that a person is not showing
denial in failing to undertake desired precautions against a particular risk of harm unless:
(a) The risk was foreseeable (the risk about which the healthcare professional is awareoff)
(b) Risk was not insignificant in the issue of healthcare
(c) In certain circumstances, a logical person in a particular position might have taken the
desired set of precautions