Editorial Comment: Reliving History

Abstract:     
Commenting on an article by the Hon David Ipp, ‘The reach of the Dederer principle’, published in the same issue of the Torts Law Journal, the editor draws attention to the progress since Donoghue v Stevenson from narrow definitions of the scope of the duty of care in particular circumstances to much more general ones simply requiring the exercise of reasonable care in all the circumstances of the case. He then recounts the history of the law of occupiers’ liability and the long struggle to reform it in a similar way. The comment notes that the reform process encompassed also the removal of the absence of any duty of care placed on landlords by the law of torts and that the High Court of Australia has sought to define the scope of the landlord’s duty without providing clear guidance to the lower courts. Similarly, in removing the immunity of road authorities from liability for non-feasance in Brodie v Singleton Shire Council, a joint judgment of three members of the court introduced a limitation on the scope of the duty of care based on language derived from the old law of occupiers’ liability, viz that the duty of care is owed only to those who use reasonable care for their own safety. This is unfortunate for several reasons, including its rigidity, its reduction of the role of contributory negligence and its failure to protect the vulnerable. Similar strictures can be directed against the ‘tort law reform’ legislation in some, but not all, of the Australian states which denies liability for ‘obvious’ dangers.

Number of Pages in PDF File: 18

Keywords: common law, negligence, occupiers' liability

JEL Classification: K00, K13

Accepted Paper Series