LLB240 Study Guide - Final Guide: Contributory Negligence, Shire Of Pyrenees, Michael Kirby (Judge)
- “Tort law reform legislation emphasises notions of personal responsibility for one’s own
actions and de-emphasises collective responsibility”
- “Community expectations that victims should have access to compensation from offenders
rather than the offenders having the money themselves”
- “The passing of legislation with different provisions and different wording in similar
provisions in jurisdictions around Australia has the potential to have an undesirable effect
on what was a unified law of tort in Australia. Rather than creating fairness and
predictability, the existence of different legislation around Australia might create a lack of
predictability and increase the cost and availability of insurance”
- The law of torts creates unfair and unequal treatment
Ø Failure to take into account the monetary inequality between the parties
Ø Cost
Ø Ability of a plaintiff to receive compensation is entirely dependent on establishing fault
by the alleged wrongdoer
- “It is beyond controversy that the role of Australian courts is to do justice according to law
– not to do justice according to idiosyncratic notions as to what is just in the circumstances.
Hence, the rule of law, not the rule of judges” Gaudron J in Australian Broadcasting
Corporation v Lenah Game Meats
- Purposes of Tort Law: (Gummow J – Pyrenees Shire Council v Day)
Compensation (to restore back to original position)
Deterrence
Loss spreading
Significant overlap between all three
- Themes:
Ø Fairness/Justice subjective
Ø Fault – non-negligible? Not always overlap between moral fault and legal fault.
Punishable acts not always intentional.
Ø Correction of harm
- Rationale: ‘Part of the genius of the tort of negligence in the CL has been to its malleability
and versatility, which permit it to respond to the exigencies of changing times… With
reasonable care as the touchstone of liability, the action of negligence has adapted to
circumstance which would have been inconceivable when DvS was written’ (Kirby J –
Harriton v Stevenson)
- Limitations:
Ø Access to justice (cost, knowledge, limitation periods)
Ø Tort law only assists those who have sustained harm/damage/contravention of rights
from another party/s
Ø Legal thresholds don’t always align with ethics/morals
Ø Balances social expectations with legal principles
Suggestions of the Ipp Report – Review of the Law of Negligence Final Report (2
October 2002)
Reasons for Ipp Report – mainly a response to the insurance crisis, the cost of insuring
public events was beginning to be too high
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Document Summary
Tort law reform legislation emphasises notions of personal responsibility for one"s own actions and de-emphasises collective responsibility . Community expectations that victims should have access to compensation from offenders rather than the offenders having the money themselves . The passing of legislation with different provisions and different wording in similar provisions in jurisdictions around australia has the potential to have an undesirable effect on what was a unified law of tort in australia. Rather than creating fairness and predictability, the existence of different legislation around australia might create a lack of predictability and increase the cost and availability of insurance . The law of torts creates unfair and unequal treatment. Failure to take into account the monetary inequality between the parties. Ability of a plaintiff to receive compensation is entirely dependent on establishing fault by the alleged wrongdoer. It is beyond controversy that the role of australian courts is to do justice according to law.
