Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia

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.

Keywords: 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

JEL Classification: K10, K12, K13, K32, K41