Don’t Look for Fault, Find a Remedy! Exploring Alternative Forms of Compensating Medical Injuries in Australia, New Zealand and Belgium

Effective tort systems should enable access to compensation following medical injury. The existing Australian fault-based system presents barriers in accessing compensation in medical negligence claims, particularly in Victoria where claimants must satisfy permanent injury thresholds for pain and suffering damages. Proving negligence in fault systems can be lengthy, expensive and stressful. Litigation in fault-based systems embeds the dispute in an adversarial system, sidelining non- nancial needs of disputants – such as voice or the desire for an explanation or an apology – which inhibits non-adversarial justice approaches. Australian policy settings may be in uenced by international jurisdictions which operate more effective no-fault medical compensation schemes. These include New Zealand’s Accident Compensation Corporation, or Belgium’s Fund for Medical Accidents which may act as models for Australia. These international systems may address shortcomings of the Australian system. This article undertakes a comparison of these three systems – Australia, NZ, and Belgium – arguing that the Belgian and NZ systems offer suitable models for adoption in Australia. The article critiques the present fault-based Australian system of compensation and argues for the need to focus less on proving fault, and more on procuring a remedy for injured individuals. Recommended reform would provide bene t through more efficient and effective systems to meet the needs of injured claimants.