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Abstract:
The introduction of proportionate liability for claims for purely economic loss and property damage arising out of tortious or contractual negligence, or misleading and deceptive conduct by corporations and others, will change the way litigation will be planned and conducted in Australia, as it has in those states in the United States where proportionate liability has been in place for some time. The reforms are of particular interest to auditors and other professional advisors and their clients. Defendants will no longer be subject to joint and several liability for a plaintiff's whole loss but will have their contributions to the plaintiff's loss assessed at the outset according to what the court considers is a just amount reflecting their comparative responsibility. The risk of an insolvent defendant shifts onto the plaintiff rather than onto other defendants. The provisions raise many practical questions. A key issue is the extent to which a court will be prepared to consider the responsibility of those who are not parties to the action. Another issue is the extent to which the provisions apply to those who are liable under statute as accessories to corporate breaches. The provisions are not just of interest to litigators: parties to a contract should also consider how the proportionate liability regime may be circumvented or regulated by contractual terms. Those to benefit most from the legislation are "deep-pocket" defendants who have previously shouldered the bulk of the liability where loss is caused by the fault of many.

tort, contract, trade practices legislation, proportionate liability, joint and several liability, concurrent wrongdoers, insolvency, corporate breaches, misleading and deceptive conduct, statutory interpretation, litigation, onus of proof

Abstract:
This article uses the context of tort reform legislation to trace the impact of legislation on the principles and operation of tort law, and to analyse the continuing role of the common law in an age of statutes. Broad legislative reforms raise a number of questions of statutory interpretation which are dealt with the first section of the article: for example, does the legislation cover the field, does statutory reform allow continuing development of common law principles. As Roscoe Pound recognized in his 1908 Harvard Law Review article on "Common law and Legislation", legislative policy can also have an indirect influence on the common law, by analogy. Section 2 of the article then goes on to trace the history of legislative intervention in tort law. Section 3 deals with issues of construction and analogy. Sections 4 and 5 deal with the substance and interpretation of the tort reform statutes in Australia, with particular attention to the issues of the test for breach of duty, liability for inherent and obvious risks generally and in the context of recreational activities, and causation principles, both in negligence and under contract. Section 6 deals with the relevance of extrinsic materials in statutory interpretation in this context. The article concludes with a discussion of what aspects of tort law remain unaffected by tort reform legislation and thus subject to continuing development as common law.

tort, negligence, contractual duties of care, civil liability, tort reform, statutory interpretation, statutory construction, legislative policy, common law, breach of duty, causation, inherent risks, obvious risks, recreational activities, dangerous activities, extrinsic materials

Abstract:
This article considers, with a review of recent case law, the impact of tort reform legislation in Australia on the common law of negligence in relation to four issues: the test for breach of duty, and particularly the Wyong Shire Council v Shirt principles; the legal effect of a risk of injury being inherent or obvious, particularly in the context of recreational or dangerous activities; the effect of contributory negligence; and the effect of a plaintiff's intoxication. It argues that the common law has not always been simplified, clarified or changed by the statutory provisions, but in some cases has been made more complex. It also argues that by trying to impose a greater degree of personal responsibility on less deserving plaintiffs the legislature has effectively allowed the complete exculpation of negligent defendants in some cases, thus undoing the advances in apportionment of responsibility that had been achieved by earlier legislation. It concludes by questioning the reliability of so-called community attitudes and objectives which were said to underpin the legislation.

Negligence, tort, tort reform, obvious risks, breach of duty, negligence calculus, recreational activities, dangerous activities, contributory negligence, intoxication, community standards

Abstract:
This paper will explore the efficacy of contractual exclusions of obligations of care or liability for negligence. It will begin by setting out some fundamental principles of construction of exclusive clauses affecting the tort liability of the parties to the contract. It will then turn to so-called 'secondary rules' of construction relating to exclusions for negligence and their continuing role in the light of the judicial trend to favour more general principles of construction for commercial contracts. It will also consider the impact of case law on the construction of indemnity clauses which in some situations are akin or similar to exclusion clauses.

Contract, tort, negligence, indemnities, exclusion clauses, limitation clauses

Abstract:
The article explores the relationship between the contractual standard of duty requiring the exercise of care and the imposition of a duty of care in tort. One aspect of that relationship has become a matter of considerable importance in the application of the proportionate liability provisions of the Australian civil liability legislation. Although that legislation applies to claims for purely economic loss and property damage ‘arising from a failure to take reasonable care’, recent decisions have held that requirement to be satisfied by the careless breach of a strict duty. This article argues that this approach is wrong and undesirable.

contract, concurrent liability in tort and contract, proportionate liability, purely economic loss in tort, negligence