• Selected
• Entire List

Abstract:
The theme of the conference at which the paper on which this chapter is based was originally presented was Principle and Policy in Private Law. It is not always easy to distinguish principle from policy, as Jane Stapleton has shown in her address to the High Court of Australia on the occasion of its centenary. Nevertheless, this chapter contends that the High Court must make use of policy, since principle alone will seldom be sufficient, to enable it to decide the cases that come before it. At the outset the chapter refers briefly to the controversy as to whether courts do or do not make law. In agreement with most judges and commentators today, it accepts that they do. It recognises, however, that there are differences between judicial and legislative powers in this regard and that there are limits on what judges can do in this respect. Nonetheless, the High Court, like all appellate courts, has leeways of choice open to it.

negligence, High Court of Australia, policy

Abstract:
The High Court of Australia, like all appellate courts, has leeways of choice open to it when deciding the cases that come before it. This is perhaps more obvious than with other appellate courts because the High Court, unlike comparable courts elsewhere, gives brief reasons when it refuses special leave to appeal. All appeals from courts in Australia to the High Court require such special leave. The criteria it applies in granting special leave mean that there are at least reasonable grounds for argument that the decision below is wrong and that the case raises issues of importance. The frequency of dissent in the High Court shows the room that the judges have in deciding each case. Principle alone cannot determine the outcome and the court must turn to values and policy. Instances of this before the 1970s are to be found, but it is only thereafter that these matters came to be brought out into the open.

Important in this regard was the analysis of the tort of negligence in the judgments of Deane J in Jaensch v Coffey and Sutherland Shire Council v Heyman, where values and policy were recognised as playing a role in determining duty of care in novel situations at the stage of deciding whether the relationship between the parties possessed the required degree of proximity. His Honour's claims for the concept of proximity as a universal determinant of the categories of case in which a duty of care was recognised were adopted by almost all members of the High Court while he himself was a member of the Bench, but fell into disfavour thereafter.

Deane J's successor on the High Court, Kirby J, has kept the flag flying for open recognition of and consideration of issues of policy, while acknowledging that the limited materials before the court often makes it impossible to decide on true policy grounds. Other members of the court claim to prefer principle to policy, but policy reasoning permeates many of their judgments.

Policy and values enter into the determination of torts cases not only in relation to duty of care, but also in relation to causation and remoteness of damage and the assessment of damages. Cattanach v Melchior may be seen as raising issues either of the scope of the duty of care or of remoteness of damage; Chappel v Hart and Kars v Kars provide illustrations of policy factors entering into decisions on causation and damages respectively.

An issue not dealt with in the paper is how the High Court could better inform itself of the relevant social facts in assisting it to make its policy decisions. Brandeis briefs, intervention by non-parties and additional expert evidence at trial all have costs. It is hoped that other contributors at the conference will take up some of these matters.

Australia, High Court of Australia, tort, negligence, policy

Abstract:
This is the text of a paper presented at the National Conference of the Australian Insurance Law Association (AILA) in Adelaide on 14 August 2003. It traces the path of the law of negligence in the High Court of Australia and, to some extent, the New Zealand Court of Appeal from 1973 to 2003. It also refers to legislation in both these jurisdictions that has impinged on the law of compensation for personal injury. It shows that the courts have abrogated several common law immunities and special standards of care and moved towards one general principle of reasonable care in all the circumstances. However, the application of the criterion of reasonable care in recent years in Australia has become much more stringent, with a marked decrease in plaintiff-friendly decisions at the highest appellate level.

Negligence, personal injury, Australia, New Zealand

Abstract:
New provisions relating to the duty of care not to cause psychiatric injury (or mental harm) were inserted into the Wrongs Act 1958 at the end of 2003. This article considers the present common law in Australia in relation to such injury and the effect of the legislation on the law in Victoria.

psychiatric, injury, negligence, negligent, damages, law

Abstract:
This essay is a contribution to a thematic issue of the Sydney Law Review on the subject of "Torts and Damages: Policy and Future Directions" (2005) 27 Syd. L. Rev. 383-543.

In it, Professor Luntz gives a highly personal account of his legal education in South Africa and Oxford, his experience with the law of delict and torts in operation and his conversion to the view that the law of torts as a mechanism for accident compensation should be replaced by a comprehensive social insurance scheme encompassing incapacity due not only to accident, but also to disease and congenital disability. He recounts some of the debate in Australia on no-fault accident compensation schemes and comments on the "insurance crisis" of 2001-04 and the so-called "tort reform" legislation enacted as a response to the perceived need to rein in the law of torts.

torts, delict, insurance crisis, no-fault accident compensation, insurance, tort reform

Abstract:
This paper, originally presented at a Symposium on "The Future of Accident Compensation: New Directions and Visions" in Wellington, New Zealand, on 5 and 6 December 2003, presents a view of the reasons for the moves towards restriction of liability and damages in personal injury actions in Australia during the previous three years. It briefly sets out the process by which the restrictions have come about. It then draws attention to some of the legislative changes that have been made as part of so-called "tort law reform". At the time of writing the article, that process was still in progress.

The paper demonstrates how the cost of retaining the common law system in respect of motor accidents, even with limitations on recovery of damages, in New South Wales compares unfavourably with the no-fault system operating in the neighbouring State of Victoria and even more so when compared with the Accident Compensation Scheme in New Zealand. Similarly, the cost to employers of workers' compensation in Australia, which often includes the possibility of some access to common law action, is much higher than the cost in New Zealand, where common law action is excluded. This gives New Zealand manufacturers a competitive advantage over their Australian rivals.

The conclusion reached is that the defects in the common law insurance system that the Woodhouse Royal Commission identified in New Zealand more than 30 years ago are alive and well in Australia. Furthermore, the changes that have been made in Australia as part of "tort law reform" will not only exacerbate many of the problems, but have also made the common law completely unprincipled.

accident compensation, tort, personal injury, Australia, law reform, no-fault compensation, New Zealand, workers' compensation, damages

Abstract:
The Woodhouse Commission examined the common criticisms of the common law action for negligence in relation to personal injury. The criticisms included the risk of litigation (the uncertainty of outcome); the reduction of damages if there was any contributory negligence; the long delays before the receipt of compensation, if any; the high costs of determining who was and who was not entitled; the need to find a solvent defendant; the adverse effects on rehabilitation; and the inappropriateness of lump sum awards of damages to provide for long-term incapacity. The Woodhouse Commission concluded that "the time [had] clearly come for the common law action to yield to a more coherent and consistent remedy in the whole area of personal injury", and it recommended "that the Court action based on fault should now be abolished in respect of all cases of personal injury, no matter how occurring". This article examines the continued application of the common law of negligence in relation to personal injury in Australia, with particular reference to decisions of the High Court of Australia. It demonstrates that the criticisms made by the Woodhouse Commission remain valid 40 years later, and contrasts the decisions of the High Court with how similar injuries would be dealt with in New Zealand. For pragmatic reasons, the Woodhouse Commission confined its recommendations to accidental injuries, and hoped that other forms of incapacity could be accommodated later. The later "Australian Woodhouse Report" recommended the extension of the compensation scheme to incapacity caused by congenital conditions and sickness, but that scheme was never implemented. The failure to extend the New Zealand compensation scheme in this way means that some of the High Court decisions on the common law deal with situations on the borderline of the New Zealand compensation scheme and are likely to give rise to similar problems.

Woodhouse Commission, common criticism of the common law, negligence, personal injury

Abstract:
In Part 3 of its report in 1967, the Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand (the Woodhouse Commission) examined common criticisms of the common law action for negligence in relation to personal injury (and some defences of the action). The criticisms included the risk of litigation (the uncertainty of outcome); the reduction of damages if there was any contributory negligence; long delays before the receipt of compensation, if any; the high costs of determining who was and who was not entitled; the need to find a solvent defendant; the adverse effects on rehabilitation; and the inappropriateness of lump-sum awards of damages to provide for long-term incapacity. The Woodhouse Commission concluded that the time [had] clearly come for the common law action to yield to a more coherent and consistent remedy in the whole area of personal injury and it recommended that the Court action based on fault should now be abolished in respect of all cases of personal injury, no matter how occurring.

This paper examines the continued application of the common law of negligence in relation to personal injury in Australia, with particular reference to decisions of the highest court, the High Court of Australia, in the 21st century. It demonstrates that the criticisms made by the Woodhouse Commission remain valid 40 years later and the arguments for its total abolition are as strong as ever. It contrasts the decisions of the High Court with how similar injuries would be dealt with under the accident compensation scheme in New Zealand.

For pragmatic reasons, the Woodhouse Commission confined its recommendations to accidental injuries. It hoped that other forms of incapacity could be accommodated later. The later Australian Woodhouse Report recommended the extension of the scheme to incapacity caused by congenital conditions and sickness, but that scheme was never implemented. The failure to extend the New Zealand scheme in this way means that some of the High Court decisions on the common law deal with situations on the borderline of the New Zealand scheme and are likely to give rise to similar problems.

Woodhouse Commission, royal commission, personal injury, New Zealand, negligence, Australia

Abstract:
In the period 2001 to 2003, the New South Wales legislature enacted four Acts that impinge on the assessment of damages in litigation against health professionals. They are the Health Care Liability Act 2001 (NSW), the Civil Liability Act 2002 (NSW) (as originally enacted), the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) and the Civil Liability Amendment Act 2003 (NSW). This paper considers the principles on which damages are assessed in medical litigation and how those principles have been affected by these four enactments. It points out that each piece of legislation was retrospective in applying to events that occurred both before and after its commencement. However, proceedings already issued before a particular date were excluded in each case from the retrospective operation of the legislation. The article provides details of the relevant dates of operation of each of the statutes.

damages, medical litigation, Australia, New South Wales

Abstract:
During 2003 the High Court of Australia decided 18 torts-related cases. This article notes all of them and provides a brief commentary. It finds that the trend towards favouring defendants has been continued. It also considers the process for granting special leave to appeal and deplores the time and resources wasted by the final court of appeal on so many purely factual issues. It also regrets the inability of the justices to reach agreement so as to provide clear guidance for lower courts.

torts, Australia, appeals, special leave, 2003

Abstract:
Soon after ACC was enacted the momentum for comprehensive no-fault reform shifted to Australia, where another Commission led by Sir Owen Woodhouse extended the New Zealand principles to address all forms of incapacity, including sickness, in an integrated scheme. The proposed Australian ACC model suggests the radical potential contained in the original Woodhouse vision, even though political events in Australia followed a different course from those in New Zealand. This paper explains the evolution of the Woodhouse principles in the context of Australian policy and politics, and offers reasons why the proposed scheme never came to enactment.