F The Argument for Statutory Reform Rather than Common Law Development As already noted, the Royal Commission recommends statutory reform to bring clarity and certainty to the availability of compensation. The reasons which support statutory reform to the basis of institutional liability currently provided by the common law of tort, as opposed to leaving it to be developed by the courts, are considered briefly here.
1 Unpredictability of Common Law Reform First and foremost, there is simply no guarantee that common law development will occur at all in Australia, or with in any predictable time frame. The High Court last considered these issues in Lepore in 2003.134 That decision had no clear ratio, contributing to the problems faced now. There are fixed criteria to meet before the High Court will grant special leave to appeal and particular criteria to satisfy before it will reconsider its earlier decisions.135 The case needs to be the appropriate vehicle to determine the issues with the relevant question ‘in dispute’. Courts are restricted to deciding only the issues in the case before the court.136 All these factors stand in the way of timely change to the common law by the courts. This is a particular burden for elderly and unwell survivors.
