Mr CIOBO (5:11 PM) —Volenti non fit injuria is one of the few Latin maxims that I recall from my time at law school. Having not actually been a practising lawyer and focusing on national competition policy and the Trade Practices Act in my role with PricewaterhouseCoopers, I do not profess to be a torts law expert. That said, I do recall a number of the fundamental principles: reasonable foreseeability, duty of care, volenti non fit injuria and, in the words of one of my law lecturers that still ring loudly in my mind, `if in doubt, sue every-one'.

As I recall, the tests were all fairly practical and seemed reasonable as tools to be used in determining liability, apportioning blame and consequentially determining the quantum of damages that should flow from negligence. As of today, though, I can only conclude that those tests—tests which seemed reason-able at the time—must have been eroded with the passage of time. The result is a tort law framework that now clearly has been hijacked so that our modern day culture of blame becomes an inviting home for the welfare state—an issue discussed by Professor Peter Cane, a professor of law in the Research School of Social Sciences at the Australian National University and a member of the Ipp review of negligence.

Principles have been prostituted as we increasingly bend, mould, twist, stretch and force the torts liability framework to fit what is a legitimate community expectation that people injured will be provided for. As a community, however, we now witness the true costs of our dalliance with the smooth and sensual temptations of no win, no pay litigation. Like so many good ideas at the time, the collective litigation headache betrays an overly enthusiastic embrace of plaintiff empowerment.

The principles of duty of care and reasonable foreseeability have been so abused that they now are virtually unrecognisable. This abuse is evident in some of the recent high-profile liability cases, and I will outline a few. The first is the case of Alex and Pam Makauskas, the owners of a canal-front home on the Gold Coast. Mr and Mrs Makauskas were held 70 per cent liable for the injuries suffered by their son's friend—a reckless young man who, while affected by alcohol, decided to dive off the back fence of their home into the canal and, in the process of doing that, struck his head and broke his spine. The result was paralysis from his chest down. In the first instance, a jury awarded damages of $2 million against Mr and Mrs Makauskas.

Another example is Mr Guy Swain. Mr Swain decided to take a swim at Bondi Beach after sharing a 750 millilitre bottle of beer with a friend and after having consumed the drug ecstasy the evening before. He entered the surf at Bondi Beach between the flags and decided to dive into the water when it was only waist-deep. He subsequently struck his head and broke his spine. The local council was held 75 per cent liable and in breach of its duty of care, initially having damages awarded against it of some $3.7 million.

A further case involved South Tweed Heads Rugby League Football Club and Ms Cole. Ms Cole had been drinking at the South Tweed Heads Rugby League Football Club. She was asked to leave because she was inebriated. She was offered a lift home and the offer was made to have a taxi called for her, but she declined both. After leaving the club, Ms Cole was struck by a vehicle whilst she was walking along the road. Outrageously, in the first instance, the club was held 30 per cent liable for the injuries she suffered. Indeed, the driver of the vehicle was also held 30 per cent liable despite the fact it was evening and despite the fact that Ms Cole was wearing black and had dark hair. In that particular example other people were, in aggregate, held to be more responsible for the injuries Ms Cole suffered than she was, despite the fact that she was the one who got drunk and she was the one who took the unwise decision to walk down the road.

Each of the particulars in these examples was the outcome of a trial. Thankfully, each was successfully appealed by the defendants. I say thankfully because, had these cases and these precedents been upheld, we truly would have turned our backs on virtually any notion of a person being responsible for their own actions. The recent concerns expressed by the AMA's chief, Dr Bill Glasson, on behalf of many doctors throughout Australia in large part reflects what is aptly termed `the retreat from responsibility'. This phrase was used by Mr Simon Longstaff, the executive director of the St James Ethics Centre, to describe the all too prevalent conditions which exist in Australia at present—circumstances in which the first question asked by too many Australians when they are injured would appear to be, `Who can I sue?'

The late night television advertisements by so many plaintiff lawyers reek from the stench of societal decay. They truly are people who historically have enjoyed the title of a professional, yet they appear to take every opportunity to exploit the vulnerable in pursuit of their business and to hell with whomever it is that gets caught up in the ride or its consequential impact on society.

This retreat from responsibility is clearly identifiable in Australian society. Over the past months I have spoken with many doctors in my electorate who are sick and tired of vexatious and expensive pot shots taken at deep pocket doctors. As one doctor recently mentioned to me, each letter from an unscrupulous lawyer or money hungry plaintiff is equivalent to a sniper at the edge of a village. It effectively brings the whole town to a grinding halt as people spend their time looking over their shoulder for problem patients that are armed with unprincipled lawyers.

Torts law is not about providing for all people all the time. Torts law has, at its core, the notion that it compensates for harm and loss but it is not, and should never be allowed to become, an opportunity for social welfare. As I said at the outset, there is a legitimate expectation in the community for there to be some form of societal welfare for those people that have been injured in unforeseeable instances. But in that situation, it is important that an appropriate safeguard is put in place and not the ineffective tort system used as the barrier. I referred to Professor Cane earlier in my speech and I would like to quote, in particular, from an article he wrote in the Canberra Times on Friday, 4 July this year. These are some findings by Professor Cane:

So you get some indication of the ineffective nature of torts law as a form of redress for those who do need some form of social welfare. Professor Cane goes on to talk about the situation in New Zealand. He says:

I am not a socialist, and I would not advocate the socialisation of a no-fault welfare scheme. But what I would advocate is for people to once again take responsibility for themselves and perhaps, in the same way that people who are self-employed currently have tax deductibility on income protection insurance, we should do some modelling to look at the opportunity to extend this to all employees so that people are then taking responsibility for guaranteeing their income into the future.