Interestingly, I have, in the last 6 to 12 months noted a drop in the number of medical negligence and other personal injury claims proceeding to trial (it has to be said with some personal frustration/disappointment).

Traditionally my advice to clients has been that, if they obtain a supportive expert opinion critical of the care in issue, the chances are somewhere between 5 and 10% their medical negligence case may need to proceed to trial. On the assumption that about 50 cases the firm handles proceed to pre-trial conference per year, traditionally a couple of cases would not be resolved and proceed to trial each year.

My anecdotal impression seemed supported by the recent decision by the Supreme Court to encourage plaintiffs in complex medical or other personal injury claims to consider initiating proceedings in such court. Whilst such Court has had jurisdiction to handle such matters, until this point, they have tended to remit any cases brought, to the District Court (apart from asbestos related cases).

I note Bill Madden’s recent post confirming that this trend is not isolated to Western Australia and in fact across Australia. The present best figures Bill cites suggest “only” 3% of medical claims brought in Australia proceed to trial.

When regard is had to those cases in which plaintiffs are poorly advised and do not have any credible prospect of their claim succeeding, those involving incredible complexity of medical issue and/or fundamental issues as to primary fact, these figures should be very encouraging to potential plaintiffs. Provided there claim is appropriately investigated and handled, the prospects of a trial being required to resolve such a claim, as these figures show, is very small indeed.

The further observation that can be made is that with so few cases proceeding to trial, traditional criteria for selection of Judges may need to be rethought. If, in the vast majority of cases, the judge’s role is in effect to facilitate a process leading to a negotiated settlement, different skills may be required than the traditional trial role. This observation has already been very apparent in relation to the contemporary role for Registrars in the court. Whilst 20 years ago this primarily involved dealing with contentious interlocutory disputes, their role (and consequent key areas for expertise and training) is today primarily in facilitating discussion between the parties through pre-trial conference and mediation processes