Reproduced from The Supreme Court of Victoria, Medico-Legal Society of Victoria, The Victorian Bar, 6 May 2005 | Speech by The Hon Chief Justice Marilyn Warren
|Doctors, Lawyers and Immunity from Suit: What’s Fair for One Should be Fair for All?
May 2005 Speech by Hon Chief Justice Marilyn Warren
INTRODUCTION: Ladies and Gentlemen:
Most of you in the audience are either trained doctors or lawyers. Some of you even practice in both fields. It is with some regret however that I announce the outcome of the latest Morgan Galllup poll. One of these professions is held in very high esteem by the community. The other ranks alongside use care salesmen and politicians. No prizes for guessing which.
There are some sophisticated theories as to why lawyers fare so badly in the popularity stakes. The “dentist theory” says we encounter lawyers, like dentists, at unhappy and expensive times in our lives – and we transfer the pain into dislike and anger for the person who delivers the service.
Not a bad theory. But it can’t be right. Dentists are not especially unpopular in Australia, even if most people do not particularly enjoy the experience of visiting one.
Personally, I like the “bartender theory.”
As one U.S. legal critic puts it, “many of us head for the bartender who mixes the stiffest drinks.” (footnotes deleted) In other words, clients actively seek out lawyers who will get them what they want. For instance, (or so the theory goes) the revengeful spouse looks for the “take-no-prisoners” divorce lawyer. The creditor looks for the lawyer who will give their debor the hardest time; and “the person nursing a dubious personal injury claim”, looks for the lawyer who is “best at exaggerating”.
Judging from some recent media reports, lawyers may be even less popular than usual with some members of other professions at the moment. Doctors in particular. I refer to the High Court’s recent decision to retain (SIC – EXPONENTIALLY GROW – Ed., commment added) the lawyer’s historical privilege of advocates immunity in D’Orta-Ekenaike v Victoria Legal Aid. It has had many professionals, in particular medical practitioners, raising the question: “why is (it) that I can be sued and lawyers, for the most part, cannot be?”
It is an interesting (SIC, Ed., emphasis added) question. Particularly when one recalls the fact that the law forced the medical profession to accept negligence liability quite a few decades ago now. Some disgruntled doctors have been heard to say: “How would lawyers like it if their professional actions were trawled over years later, and they were held liable for not ensuring their client understood every risk implicit in a particular case? The threat of litigation is reported to be a persistent worry, particularly in high risk litigation areas like obstetrics.
Justice Kirby, the only one of the seven Justices to dissent in D’Orta-Ekenaike, put the problem the problem (SIC) in the following way:
“I just have to tell you .. the rest of the community, including the rest of the professional community, regards this as the courts looking after their own.”
This is doubtless not true from the standpoint of the High Court Judges (GOOD LORD, THE SPEAKER WAS A HIGH COURT JUDGE, DEAR MADAM – Ed., comment added).
So how and why are doctors not similarly protected from suit? (THAT, DEAR MADAM, IS NOT THE QUESTION – WHY AREN’T AUSTRALIAN DOCTORS AND ALL OTHER AUSTRALIAN CITIZENS PROTECTED FROM SHODDY AND CROOKED AUSTRALIAN LAWYERS, JUST LIKE DOCTORS AND CITIZENS IN EVERY OTHER COUNTRY ARE PROTECTED FROM SHODDY AND CROOKED LAWYERS IN EVERY OTHER COUNTRY. Ed, exasperated comment added.) And why are lawyers the last profession to have (STRICTLY, THE FIRST PROFESSION TO RE-GIVE THEMSELVES, AND THE ONLY PROFESSION ABLE TO RE-GIVE THEMSELVES. Ed., comment added) immunity from negligence claims?
The first question leads us to a brief explanation of the history of medical negligence (HARDLY LOGICAL OR RATIONAL, MADAM. Ed., comment added) and where it stands now, particularly in light of tort reforms. The second will be answered (HARDLY, DEAR MADAM. Ed., comment added) by focussing on D’Orta-Ekenaike (NB the name of the defendnant v Victoria Legal Aid & Anor – viz a Victorian government agency full of lawyers funding, seeking immunity, and a member of the Victorian Bar funded by VLA with public monies. Ed., comment added) and what led the court to affirm (NO, LED THE UNELECTED, UNREPRESENTATIVE, UNDEMOCRATIC LAWYERS SELF-APPOINTED TO THE TOP BENCH OF THE JUDICIAL BRANCH OF GOVERNMENT IN AUSTRALIA TO 6:1 VOTE TO EXPONENTIALLY GROW) advocate’s immunity.
The 1930’s English decision, Donoghue v Stevenson, was the case that boosted consumer rights; the first to establish that product providers owe consumers a duty of care. “Product providers” expanded to include service providers 9according to Lord MacMillan in that case, “the categories of negligence are never closed”. The effect of Donoghue was such that by the 1950’s, the courts in Australia and elsewhere in the common law world were seeing a flow of cases against hospitals and doctors.
Initially, the patients were rarely successful (BUT GEE, THE LAWYERS MADE PACKETS OUT OF DOCTOR’S INSURANCE FUNDS OUT OF INSURERS WHO RAISE INSURANCE PREMIUMS FOR ALL CUSTOMERS TO FUND THE INFLOW OF INCOME AND WEALTH TO THE LAWYERS. Ed., comment added).
Lord Denning, a prominent English Judge (LORD DENNING, AN OUT OF THE CLOSET DEGENERATIVE NAZI LAWYEROCRAT, HE OF THE BIRMINGHAM SIX INFAMY. Ed, comment added), was able to explain why that was the case, giving voice to a widely held opinion amongst the judiciary and the community when he said:
“In a professional man, an error of judgment is not negligent.”
“If (medical practitioners) are found to be liable …, whenever anything untoward happens it would do a great disservice to the profession itself …”
(above is just an extract of the first two and a bit pages. To see the full text of Hon Chief Justice Marilyn Warren’s, amazing, frightening, singularly stupid lawyerocracy propaganda speech, and grab a glimpse of the Vermillion Seal and Letterhead of the Supreme Court of Victoria, see the link below).
You can download a printer friendly copy of the original speech from my (shamed to say) Law School alma mater, Marilyn Louise Warren Chief Justice of the Supreme Court of Victoria, on its original Supreme Court of Victoria letterhead, “Doctors, Lawyers and Immunity From Suit: What’s Fair for One Should be Fair for All?”, here.
Chief Justice Marilyn Lousie Warren is amongst 16 Supreme Court of Victoria judicial officers (mostly Judges, but including several senior registry staff and the Victorian Supreme Court’s former CEO Michael McGarvie) summonsed to produce documents, audio and printed transcripts and to give evidence at the Lawyerocracy on Trial hearings, starting 10.00 am at 55 King Street, Melbourne, Victoria, Australia on 21 May 2012.
Former Supreme Court of Victoria CEO Michael McGarvie is the man who was hastily transferred by the Lawyerocracy elite to take up the position of Legal Services Commissioner Victoria (aka godfather and protection-racketeer for the legal brother-and-sisterhood) after his predecessor Victoria Marles resigned in disgrace after two damning Supreme Court legal proceedings and a damning State Government Ombudsman Victoria Report to Parliament in December 2008 and Spring 2009. Click here for more information.
I have resisted, barely resisted, mostly resisted, the temptation to rip into this grossly negligent, judicially shameful propaganda piece by the incumbent (Robert Hulls appointed) Chief Justice of Victoria, Ms Marilyn Louise Warren. She delivered it to a nest full of lawyers (and a few doctors who self-lawyer – imagine lawyers, self-doctoring, ROFL), only two months after the High Court handed down its international law violating 6:1 judgment in D’Orta-Ekenaike v Victoria Legal Aid and another (a Barrister). Public and professional resentment at this lawyers violation of democracy, human rights and the rule of law (affirmation of an unconstitutional “two step” system of laws) was running pretty rife at that time – before beaches, sports and sunny weather crept back in to take over and reoccupy the greater Australian psyche – replacing “no worries” about those other trifles – oh look, a horse race, a footy match and a song competition on TV … )
And to think that the High Court waited a full twelve months between hearing the appeal and publishing judgments. And Hon Justice Michael Donald Kirby (who is also testifying under Summons at Lawyerocracy on Trial on 21 May 2012) went under the doctors’ knives twice in those twelve months, surviving not one, but two double heart by-pass operations. It is a good thing that the medical professionals love Hon Justice Michael Kirby as much as we the people do. If their knives had slipped (if they had practised at the standards of lawyers at the same time as they were practising on him as doctors) the world might never have known of this most powerful dissent by Australia’s greatest human rights judge and advocate – this most powerful lone dissenting voice for justice, rule of law, human rights, and humanity and ethics in the profession of lawyering, from the judge recognised around the world as the great “lone dissenter”.
Alarmingly still, despite the slamming eviction given to the Bracks-Brumby-Hulls Victorian Labor administration at the 2010 Victorian State election, Chief Justice Marilyn Louise Warren currently remains first in line to the Governorship of Victoria) behind former Supreme Court Judge, current Governor Alex Chernov QC.
Having personally experienced the injustices and corruptions that this “Red Queen” dishes out to humans in her court rooms (even humans like me with 20 years of law degrees and, non-courtier legal experience and a world class professional CV that most lawyers and aspirants “would die for”), and having watched and collected stories of equivalent shocking injustices dished out to others (picking up the pieces of those shattered victims who, like silly me walked into the warren thinking judges and lawyers were about justice and lawfulness), I look forward to cross-examining the dear lady, when I have her in the witness box a few days from now, at the Lawyerocracy on Trial Hearings, 55 King Street Melbourne (the Victorian Civil and Administrative Tribunal), beginning at 10.00 am on 21 May 2012 – click here for more information.
… to be continued …
James Johnson, Independent Federal Candidate for Lalor