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  HCA 9 at )
51 Pages Posted: 26 Feb 2016
Date Written: 2007
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: Suggested Citation