Insuring Against Negligence:
Medical Indemnity in Australia
by Julian Morris
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Out-of-control negligence law is a major underlying factor driving up insurance costs, but the recent spate of tort law reforms will do little to address it.

Australia, and in particular New South Wales, has recently seen a significant increase in insurance payouts, especially in relation to liability for personal injury.1 This is one of many factors that led to the collapse of one of Australia’s largest insurers, HIH, and it has prompted other insurance companies to increase their premiums. For many, the higher cost of insurance—or even, in some cases, unavailability of insurance at any price—has made it uneconomic to continue activities that are of benefit to society. Medical practitioners, and those who benefit from their services, have been particularly adversely affected.

While recent increases in liability premiums may simply reflect a hardening of the so-called 'insurance cycle', the costs of professional indemnity insurance for medical practitioners have been rising more or less continuously for many years, especially for those in 'high-risk' fields such as obstetrics and neurosurgery.2 In NSW, where the incidence and severity of awards for negligence have driven insurance fees higher than in other states,3 rising insurance costs are squeezing net income for medical practitioners, forcing them to choose between continuing as a relatively low-paid consultant in a high-risk field and changing either where they practice (rural/urban areas or public/private hospitals) or what they practice (less litigation-prone specialisations).

It is telling that of all common law jurisdictions, only California has more medical negligence suits than Australia.4 As most if not all the costs of such cases will be met from insurance, the effect is to make insurance for medical malpractice very costly.

But why has the number of such cases increased? Changes in the marketing (increased advertising) and pricing (no-win, no-fee) of legal services probably provide part of the explanation, but plaintiff-friendly judgements have also played a significant role. Indeed, if a longer-term view is taken, nearly the whole effect can be explained by an increase in the ambit of negligence law.

The origins of negligence

The law of negligence originated in the 19th century but its modern form dates back to the case of Donoghue v Stevenson,5 which concerned an opaque bottle of ginger beer bought by a woman called McAllister in a café in Scotland.6 The café owner poured out half the bottle and McAllister gave it to her friend, Donoghue. After consuming the contents of the glass, she poured out the other half of the bottle and noticed a decomposed snail in her glass. Donoghue subsequently claimed to have suffered from a severe gastric illness, which she alleged had been caused by the consumption of the contaminated ginger beer.

If Donoghue had bought the drink herself, she might have been able to sue the café owner for misrepresentation.7 But being a third party, she was unable to sue the café owner in contract—in Scots law (as in English common law), contracts are generally unenforceable against third parties—and chose instead to sue the manufacturer directly using the law of torts.8 In a 3-2 split decision, the House of Lords ruled that the manufacturer, Stevenson, owed a duty of care to the ultimate consumer of the bottle; that is, Stevenson was negligent in its failure to accord the appropriate standard of care that would be expected of a bottler.

This idea of the provider of a good or service owing a duty of care to the ultimate consumer of that good or service was subsequently employed in a wide range of circumstances, even extending to situations where remedies might be available through contract law.

The duty of care

Over time a set of principles has been established for determining the existence of a duty, the standard of care owed (how far does one have to go to ensure that harm is not inflicted on others) and the implications of breach (to what extent is one liable for any loss suffered by the plaintiff as a result of one's negligence). Generally speaking, in English law, the test is whether the 'reasonable man' would have behaved in the same way:

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.9

The idea of the 'reasonable man' became associated with the expression, ‘the man on the Clapham omnibus’, as being the ordinary man in the street. Obviously the precise analogy hardly applies today in South London, let alone in Sydney’s CBD, but the idea remains appealing. Nevertheless:

When the exercise of some special skill or competence, such as that of an architect or doctor, is in question, the test of the man on the Clapham omnibus is somewhat unreal. It is expected of a professional person that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill . . . the standard of care in England has been that of the ordinary skilled person exercising and professing to have that special skill, and a doctor or surgeon was not held to be negligent if he acted in accordance with the practice accepted at the time as proper by a responsible body of medical opinion, notwithstanding that other doctors adopted different practices.10

This is known as the Bolam Test, after the case in which it was established.11 It has been affirmed three times in the House of Lords,12 although in the most recent case, Bolitho, its interpretation was modified somewhat.13

Medical negligence in Australia

The Australian courts have been reluctant to accept compliance with professional practice or custom as satisfying the duty of care. Rather, the test is that of 'reasonable care'.14 In F v R,15 a woman who became pregnant following an unsuccessful sterilisation brought an action in negligence against the medical practitioner for failing to warn her of the risk that the operation would not be successful—a risk estimated at less than 1%. The Supreme Court of South Australia refused to apply Bolam. Chief Justice King stated:

The ultimate question . . . is not whether the defendant's conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court and the duty of deciding it cannot be delegated to any profession or group in the community.

The leading case remains Rogers v Whitaker, in which a patient, Maree Lynette Whitaker, had surgery on her right eye, which led to a condition known as 'sympathetic ophthalmia' in her left eye and was left almost totally blind. There was no doubt that the doctor, Christopher Rogers, had acted with the required skill and care in performing the operation. The question of liability hinged on whether Rogers owed a duty to Whitaker to inform her of the possible side effects of the surgery, which occur approximately once in every 14,000 cases.16 In the lower court, it was established that a reputable body of medical practitioners would not have informed the patient of the side effects. But it was also established that another reputable body of medical practitioners would have warned the patient.

If the Bolam test had been applied, Rogers would not have been found liable. But as in F v R the Bolam test was explicitly disapproved, this time in the High Court of Australia. The test to be applied is that specified by Chief Justice King in F v R, viz. 'reasonable care' and 'that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade'.17

In the subsequent High Court case of Naxakis v Western General Hospital and Another,18 Chief Justice Gleason, reaffirming his ruling in Rogers v Whitaker, averred: 'the test for medical negligence is not what
other doctors say they would or would not have done in the same or similar circumstances'. The case concerned a young boy who having suffered a blow to the head was taken to hospital, whereupon the chief neurosurgeon diagnosed a 'subarachnoid haemorrhage' and gave the boy treatment for that condition. The boy recovered slowly and after nine days was allowed home, but a few days later he collapsed as a result of internal bleeding in the head. He was taken to hospital and diagnosed as suffering from an aneurism. It was established that this aneurism had in fact been the cause of the earlier symptoms and that the treatment then given had been inappropriate. In the lower court none of the neurosurgeons who gave witness said that they would have done anything other than what the neurosurgeon on duty had done. In other words, this was not a case of conflicting medical opinion.

By demanding a more precautionary approach, Chief Justice Gleason is effectively asserting that doctors should always test for all possible causes of any particular symptoms—even when the original diagnosis seems correct and treatment appears to alleviate symptoms. Such reasoning presumes that there are only benefits to conducting tests, whereas of course there are also costs. A young boy with a head injury might be injured further if he is compelled to undergo an additional battery of tests: each movement to the head represents a further risk of injury.19 Not to mention the purely economic cost of requiring an indefinite series of tests for every ailment. Should general practitioners always send patients suffering from mild bowel disorders for a colonoscopy, even when the complaint disappears after a few days? What effect would such behaviour have on the costs of medical treatment?

It is impossible to eliminate all risk of error, regardless of how much one spends on testing and other precautions.20 Under such conditions, the 'reasonable care' test is nebulous and difficult to interpret in any particular situation. So doctors are left without concrete guidance as to what actions might make them liable. This has led to an increase in defensive procedures, which are both costly and in most cases unnecessary.21 It has also had adverse consequences for the availability of insurance.

Objective tests, subjective tests and insurance

The common law prides itself on its supposedly objective tests for identifying the existence of rights and duties as well as for evaluating the circumstances under which those rights and duties may have been abrogated. In the law of contract, for example, agreement is said to exist when it can be demonstrated that there was an offer made by one party, the offer was accepted by a counterparty and that the agreement entailed consideration on both sides. A contractual agreement is said to have been breached, inter alia, when one party fails to perform a condition of the contract.

In the law of torts, similarly clear objective tests exist. For example, if the owner of property A emits a substance that causes damage to property B, then the owner of A must compensate the owner of B for the harm caused. It is necessary only for the owner of B to show that this physical harm was most likely the result of the pollution emanating from A.22 Thus, a smelting works in an industrial area was enjoined for causing damage to shrubs and trees on a nearby property.23

Such objective tests create legal certainty and therefore act as a guide to human action. When actors know what the consequences of their actions will be, they are in a better position to evaluate alternative courses of action—to weigh up the costs and benefits of each potential activity and make choices accordingly.

The law of negligence (especially in the US and Australia) is no longer bound by such objective tests. Rights and duties are not clearly specified. Rather, judges evaluate post hoc what duties are supposedly owed by specific parties. But because it is impossible to know what many of these duties are before the event, actors are unable accurately to evaluate the pros and cons of investing in precautions. Instead, they are compelled to take out insurance to cover any liability that might arise.

The Australian Courts have treated this reliance on insurance as a justification for expanding negligence, so that it is effectively treated as a means of compensating injured persons regardless of the ability of the 'injurer'
to have foreseen the consequences of his or her actions:

Medical practitioners tend to see malpractice cases as involving a moral blight or stigma upon the practitioner concerned. From the point of view of the patient (and most lawyers) however, the issue is usually more basic. It is whether a person who has suffered in some way as a result of medical or hospital procedures will be cast upon the genteel poverty of the social security system or be entitled to recover compensatory damages from the medical practitioner’s insurance. To gain insurance, the practitioner must pay premiums. These premiums become part of the costs of medical practice. In this way, all patients bear the cost of, and contribute to, the fund from which are paid damages when things go wrong.24

Because of the legal uncertainty created by post-hoc creation of duties, insurance companies have had difficulties evaluating the expected costs of liabilities. Which is why they are now increasing their premiums. It is also why many doctors, especially those offering services that are inherently risky, such as obstetricians, are questioning whether it is worth paying the premiums being demanded.

What can be done

Numerous solutions to rising insurance costs have been proposed and/or implemented, including: restricting advertising by lawyers; exempting from liability certain classes of public service worker (such as doctors working in state hospitals); a cap on liability payouts; compulsory first party insurance; and the creation of a government run or government funded compensation scheme. But while some of these solutions may claw back the current insurance costs of rising payouts for negligence, they fail to address the long-term, underlying cause of the problem: the basis upon which awards for negligence are being made.

One way of imposing some order on negligence for medical malpractice and misadventure would be to compel judges to follow the Bolam test. This test continues to be applied in England and has probably helped control the cost of insurance for medical practitioners in that country. The test has the merit of being far more ‘objective’ than the reasonableness test currently pertaining in Australia.

Under a Bolam-based system, medical practitioners would not be faced with the uncertainty that their
actions might constitute negligence regardless of their attempt to abide by current industry practice and/or available safety precautions. At the moment, medical practitioners are encouraged—in an attempt to preclude liability—to engage in defensive procedures (such as costly diagnostic tests), which are often unnecessary if not harmful to patients.

Bolam, however, is not an ideal solution. Indeed, the presumption of Bolam is that the patient is more-or-less a passive recipient of medical treatment, which in an era of alleged 'consumer sovereignty' seems rather dated and paternalistic.

A more radical solution—and one that places far greater importance on the decision-making authority of the patient—would be the removal of negligence as a cause of action for injury resulting from elective treatment and its replacement with contract law. The law could be amended to enable medical practitioners and patients electively to opt out of negligence law.

Expanding the role of contract law

If the providers of medical services were able freely to contract with patients, they could exempt themselves from liability in tort. This would enable them to specify the schedule of awards that would pertain if a procedure does not meet expectations.

For example, ophthalmologist A, who charges $5,000 per procedure, might declare:

• Sum payable in the event of loss of sight in one eye: $50,000
• Sum payable in the event of loss of sight in both eyes: $500,000

Meanwhile, ophthalmologist B, who charges $2,000 per procedure, might declare:

•  Sum payable in the event of loss of sight in one eye: $10,000
•  Sum payable in the event of loss of sight in both eyes: $100,000

The implication of these award:fee ratios are that treatment by ophthalmologist A has a less than one in 10 chance of causing blindness in one eye and a less than one in 100 chance of causing blindness in both eyes. The corresponding figures for ophthalmologist B are one in five and one in 50. By specifying the level of awards for specific outcomes, medical practitioners would signal their competency to potential patients in a much more straightforwardway than is currently possible. This would enhance the ability of patients to make rational decisions about the choice of medical practitioner. In the above example, the risk-averse rich patient would prefer ophthalmologist A, whereas the risk-loving poorer patient would prefer ophthalmologist B.

Such a contract-based system might even help patients make more informed choices about which procedure(s) to 'consume', as it would be possible to compare the awards across different possible procedures.

Contract-based versus negligence-based compensation

To compare the relative merits of a contract-based system with a negligence-based system of compensation, it is worthwhile recapping the key implications of the current negligence-based system:

• Patients face a lottery in the courts should anything go wrong.
• Patients are less able to make rational decisions about treatment.25
• The high cost of third-party insurance drives up the cost of medical care and, in some cases, makes it unavailable at any price. This is particularly problematic for certain practitioners, such as obstetricians, and certain classes of patient, such as the elderly and infirm.
• Doctors are discouraged from disclosing adverse effects of procedures lest they subsequently be held liable.

By contrast, a contract-based system of awards for medical misadventure and malpractice would benefit both doctor and patient:

• Patients would have a better idea of their entitlement should anything go wrong, encouraging them to make more rational decisions about what medical services they consume.
• Doctors would be under less pressure to carry out undesirable defensive procedures, such as costly and most likely unnecessary tests.
• Risky patients (for example, the old, the infirm and the pregnant) would no longer be denied treatment; rather, they would simply face a different schedule of awards for adverse outcomes.
• To the extent that doctors and other medical practitioners would individually be responsible for paying out awards, they would have incentives to improve their standard of care.
• Where the costs of awards are distributed amongst several medical practitioners, individuals could be encouraged to report both enhancements in procedures and problems with specific procedures, in order to increase overall profitability.26
• The administrative costs would be far lower than under the current negligence-based system.
• Third-party insurance costs will come down and with it the costs of medical care, making treatment available to more people.

Judges primarily use negligence law as a means of redistributing wealth from patients with positive outcomes to patients with adverse outcomes—or, in the case of state-provided medical care, from taxpayers to patients with adverse outcomes. Yet negligence law remains a rather haphazard mechanism for such redistribution. By contrast, contract law could perform this function far more effectively.

First party (accident) insurance

Negligence-based liability compels medical practitioners to take out third-party insurance or to self-insure. As the costs of negligence rise, so the costs of insurance rise, until it ceases to be economic to offer treatment. The ultimate losers of the expansion of negligence are risky patients and those who require risky procedures.

By contrast, a system of contract-based awards for injury would lead to an expansion in the forms of treatment available and the class of patients able to undertake such treatments. No longer would elderly patients be excluded from risky procedures. For some people, however, the available awards would not be sufficient to compensate for the injuries sustained. For such people it is likely that first-party insurance would be available. Thus, by replacing negligence with contract law, the choice of what level of compensation to expect would be left with the patient.

Such first-party insurance is similar in many respects to a no-fault compensation scheme—except that it is not compulsory and individuals are able to choose the level of cover they prefer.

Alternative dispute resolution

Even where compensation for outcomes is clearly specified, disputes between the providers of medical services and the recipients may arise. In such cases, agreeing on an independent arbitrator rather than pursuing the claim in court can reduce the costs of resolving the dispute. Arbitration, or more generally alternative dispute resolution (ADR), has become the most common means of settling disputes over contracts in the US and is rapidly expanding elsewhere.27

If a contract-based system of awards for medical injury is deemed too radical, ADR might nevertheless offer a means of reducing the number of unmeritorious negligence cases that are settled out of court. For example, patients might before surgery agree to resolve any dispute over the outcome of treatment through an arbitrator.28

Elective and non-elective procedures

Many medical procedures are carried out in emergencies, under which circumstances the patient may be considered to be in a state of duress or otherwise incapable of making a free choice (he or she may be unconscious). In such cases there is no contract between the medical practitioner(s) performing the procedure and the patient.

How such cases are treated depends on who carries out the procedure and what their relationship is with the patient. If the patient has a contract with a company that provides medical services in emergencies and this company has in fact stepped in to supply those medical services, then it would be possible to include in that contract terms relating to compensation should emergency intervention go awry. Thus, even though the patient has not specifically consented to the medical procedures, he or she has consented to procedures in general, so any medical injury must be assessed within the context of the contract. The same is true of companies supplying first-party medical insurance, who can specify a schedule of awards under specific instances of intervention. These insurance companies then have an incentive to pre-contract with the suppliers of emergency medical services in order to limit their own liability.

But what happens when someone is treated in an emergency without his or her consent and outside of any contractual relationship? Such cases are prima facie instances of trespass and battery and should be treated as such; that is after all how the law treats a stranger who intentionally violates another's body without consent.29 There may, however, be defences to such violations. In particular, if a medical practitioner has prevented more serious injury or death by acting in emergency then he or she will be able to use the rescuer’s defence.

If the medical practitioner has caused more serious injury than would otherwise have resulted, then the case is less clear. Perhaps in such circumstances, the rescuer should owe a duty to take reasonable care not to injure a person further. The standard of care would depend on the expertise of the rescuer. For medical practitioners, the Bolam test seems appropriate, although modified to take account of the particular circumstances (for example, if specialist instruments are not available, then the rescuer should not be penalised for attempting surgery with improvised instruments). In such cases, breach of this duty would make the medical practitioner liable in trespass and battery.

Conclusion

A combination of constraints on negligence—at minimum reimposing the Bolam test for medical injury—and an expansion in the role of contract law would arguably offer the best outcome for both medical practitioners and patients.

Reining in negligence has the merit of creating a more certain legal environment for medical practitioners and thereby expanding the availability of medical services. A more radical shift away from negligence would encourage disclosure of problems with specific procedures and the sharing of information (within practices and hospitals, and perhaps more widely) concerning the development of new, better techniques. Enabling individuals to contract out of tort law would further expand the availability of medical services and, if combined with pre-specified schedules of awards, would enhance patient sovereignty. Allowing individuals to decide how much insurance to buy would have the added benefit of discouraging the corrosive culture of victimhood, in which it is assumed that when an adverse outcome occurs, somebody should pay, regardless of the ability of the ‘injurer’ to have foreseen the consequences of his or her actions.

Endnotes

1 It has been widely reported that the number of public liability claims in NSW rose from 53,000 in 1998 to 88,000 in 2000, a 60% increase, while the value of claims for the same period rose from $883 million to $1.2 billion. See D. Khel, 'Liability Insurance Premium Increases: Causes and Possible Government Responses', Current Issues Brief (Canberra: Parliamentary Library of Australia, 2001-02), 6; 'Public Liability Insurance: Recommendations and Discussion Options', New South Wales Liberal and National Coalition (March 2002), p. 3, citing APRA. But the link between recent increases in liability premiums and increases in litigation levels is not straightforward. A long time series is needed to demonstrate any meaningful trend in public liability because of its 'long tail', for many years can pass between an injury occurring and the time an insurer receives notice of a claim.

2 National data is not readily available, but claims frequency for medical negligence is estimated to have increased 2.5 times over the past ten years, with a threefold increase in claims payments, including a 50% rise since 1995/96. G. Harrex, K. Johnston, and E. Pearson, 'Medical Indemnity in Australia', paper presented to the Institute of Actuaries of Australia XIII General Insurance Seminar (Towbridge Consulting, 25-28 November 2001), 27.

3 See: http://www.amaq.com.au/mdoresponse.htm, accessed 19 April 2001.

4 S. Stuart Clark and Christina Harris “Multi-plaintiff litigation in Australia: a comparative perspective” 11 Duke J. Comp. & Int’l L., 289, at 289 n2 (2001), citing: Greg J. Reinhardt, 'Comment, Compensation and Professional Indemnity in Health Care - The Final Report of the Tito Committee,' 4 Torts L.J. 173, 173 (1996) and Christine McCarthy, 'Exemplary and Aggravated Damages in Medical Negligence Litigation,' 6 J.L. & Med. 187, 187 (1998).

5 [1932] AC 562

6 The 19th century cases were relatively narrowly confined to specific duty situations; Donoghue v Stevenson introduced a much broader and more general concept of negligence.

7 The basis for the rule is that contracts are formed as a result of a meeting of minds (consensus ad idem) between two people. Third parties who are not privy to such an agreement clearly cannot be bound by it.

8 However, under the 19th century principles of negligence the woman who bought the drink might have sued the café owner on behalf of her friend. In Langridge v Levy [2 M. & W. 519 (1837), aff’d 4 M. & W. 337 (1838)] a man who bought a gun for his son was able to recover damages when the gun subsequently exploded in his son’s hands because the vendor had expressly represented that the gun would be safe for use by the man’s son.

9 Blyth v Birmingham Waterworks Co (1865) 11 Exch 781, at 784 per Alderson B.

10 R. E. V Heuston and R. A. Buckley, Salmond and Heuston on the law of Torts, London: Sweet and Maxwell, 1996, at 231-232.

11Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. Bolam concerned a psychiatric patient, Bolam, who was given electro convulsive therapy. The therapy resulted in an injury to Bolam (his pelvis was broken) but the court decided that since other psychiatrists would have given the same treatment, the hospital was not negligent.

12 Whitehouse v Jordan [1981] WLR 236; Maynard v West Midlands Regional Health Authority [1984] WLR 634; Bolitho v City and Hackney Health Authority [1998] AC 232.

13 Bolitho v City and Hackney Health Authority [1998] AC 232; see also “The Bolam Test and the Reasonable Expert” (1999) 7 Tort Law Review 226.

14 F v R (1983) 33 SASR 189; Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625.

15 (1983) 33 SASR 189.

16 However, the incidence may be slightly higher in cases such as this where there has been a prior invasive wound to the eye: Rogers v Whitaker (1992) 175 CLR 479.

17 Rogers v Whitaker (1992) 175 CLR 479 at 487.

18 (1999) 162 ALR 540

19 Recommendations for the transfer of patients with acute head injuries to neurosurgical units. London: The Neuroanasthesia Society of Great Britain and Ireland, and The Association of Anaesthetists of Great Britain and Ireland. Alresford Press, 1996.

20 See e.g. Aaron Wildavsky, Searching for Safety, New Brunswick: Transaction Publishers, 1988; Julian Morris (ed.), Rethinking Risk and the Precautionary Principle, London: Butterworth-Heinemann, 2001.

21 Commonwealth Department of Health, Housing, Local Government and Community Services, Defensive Medicine and Informed Consent, AGPS, Canberra, 1993, p.76, para 8.45.

22 However, it must be shown that the damage actually exists or is imminent; otherwise there is only the potentiality of an action, not an action as such: Pemberton v Bright [1960] 1 WLR 436.

23 St Helen’s Smelting Co v Tipping (1865) 11 All ER 1483.

24 M. Kirby 'Patients Rights: why the Australian courts have rejected Bolam' 21 J. Medical Ethics, 1995.

25 The cost of acquiring reliable information about treatment and outcomes is high because doctors are discouraged from disclosing such information lest it alter their liability.

26 Whereas a primary purpose of tort law is to encourage parties to consider the adverse implications of their actions on others and thereby discourage injury, modern negligence law and the implied extensive bounds of the duty of care required of medical practitioners and others actively discourage the disclosure of information that might otherwise improve the standard of care that is offered. By contrast, a system of contract-based awards for specific outcomes would encourage better disclosure, as payouts would not be contingent on proving fault. Groups of providers, either associations of doctors or companies, would have incentives to document their experiences and thereby improve the performance of the group/company (increasing profits by reducing payouts or enabling them to charge higher fees). David M. Studdert and Troyen A. Brennan, 'Toward A Workable Model of “No-Fault” Compensation for Medical Injury in the United States,' 27 Am. J. L. and Med. 225, 2001, at 227-8

27 See: Bruce Benson, The Enterprise of Law, San Francisco: Pacific Research Institute, 1992. For ADR to be an effective means of reducing the cost of litigation it is necessary for there to be clarity in its applicability. It must, in short, be seen as a genuine alternative to litigation. The simplest way to do this would be to pass legislation removing statutory restrictions on freedom of contract. If parties are free to contract out of the court system, then the only dispute that can arise in relation to a decision made through ADR is whether or not the parties are contractually bound by the ADR. Where courts have arrogated to themselves the right to review ADR decisions, however, it may be necessary to pass legislation removing that right.

28 P. S. Atiyah, 'Tort law and the alternatives: some Anglo-American comparisons.' 1987 Duke L.J. 1002, at 1035-1036.

29 I am grateful to Leon Louw for this insight.

Author
Julian Morris is Visiting Professor, Department of International Studies, University of Birmingham; Research Fellow, Institute of Economic Affairs, London; and Director, International Policy Network, London. This article reflects the author’s opinion only. An earlier version was first presented as an Occasional Seminar to The Centre for Independent Studies on 4 March 2002.

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