A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort

James Goudkamp, ‘A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort’ (2007) 29 Sydney Law Review pp.445–493 (cited in Miller v Miller [2011] HCA 9 at [97])

51 Pages Posted: 26 Feb 2016

See all articles by James Goudkamp

James Goudkamp

University of Oxford - Faculty of Law

Date Written: 2007

Abstract

Although the defence of illegality to liability in tort has a chequered history throughout the common law world and has been trenchantly criticised by judges and academic commentators alike, the legislatures of New South Wales, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have seen fit to enact, as part of their tort 'reform' packages, far more potent statutory analogues of this defence. This article offers an analysis of these statutory defences and their relationship with the common law defence. It will be argued that the statutory defences blight an already highly unsatisfactory body of law.

Keywords: tort, negligence, defences, illegality, statutes

JEL Classification: K13

Suggested Citation

Goudkamp, James, A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort (2007). James Goudkamp, ‘A Revival of the Doctrine of Attainder? The Statutory Illegality Defences to Liability in Tort’ (2007) 29 Sydney Law Review pp.445–493 (cited in Miller v Miller [2011] HCA 9 at [97]). Available at SSRN: https://ssrn.com/abstract=2737615

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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