The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law of Negligence

Torts Law Journal, Vol. 14, No. 3, pp. 268-300, 2006

Sydney Law School Research Paper No. 07/01

34 Pages Posted: 15 Jan 2007  

Barbara McDonald

The University of Sydney Law School

Abstract

This article considers, with a review of recent case law, the impact of tort reform legislation in Australia on the common law of negligence in relation to four issues: the test for breach of duty, and particularly the Wyong Shire Council v Shirt principles; the legal effect of a risk of injury being inherent or obvious, particularly in the context of recreational or dangerous activities; the effect of contributory negligence; and the effect of a plaintiff's intoxication. It argues that the common law has not always been simplified, clarified or changed by the statutory provisions, but in some cases has been made more complex. It also argues that by trying to impose a greater degree of personal responsibility on less deserving plaintiffs the legislature has effectively allowed the complete exculpation of negligent defendants in some cases, thus undoing the advances in apportionment of responsibility that had been achieved by earlier legislation. It concludes by questioning the reliability of so-called community attitudes and objectives which were said to underpin the legislation.

Keywords: Negligence, tort, tort reform, obvious risks, breach of duty, negligence calculus, recreational activities, dangerous activities, contributory negligence, intoxication, community standards

JEL Classification: K13, K10

Suggested Citation

McDonald, Barbara, The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law of Negligence. Torts Law Journal, Vol. 14, No. 3, pp. 268-300, 2006; Sydney Law School Research Paper No. 07/01. Available at SSRN: https://ssrn.com/abstract=955949

Barbara McDonald (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Paper statistics

Downloads
1,138
Rank
13,486
Abstract Views
4,548