Australian tort law reform: statutory principles of causation and the common law

By mid-2004, Parliaments in each Australian jurisdiction will either complete or will be in the process of partial codification of the law of torts. The reforms, including those to the law of negligence, are extensive. This article focuses on codification of the law of causation as an element of the cause of action in negligence. It examines the background to "tort reform", as the process has been labelled, and discusses the common law paradigm of negligence and various approaches to causation. It then analyses and compares the causation provisions in each jurisdiction.

Damages for pain and suffering in tort law

Legislation enacted between 2002 and 2005 by each Australian State and Territory reformed and partially codified the common law of personal injuries. This column examines the nature and history of damages for pain and suffering and analyses the approach taken by different Australian jurisdictions to compensation for non-economic loss. Non-economic loss is generally composed of pain and suffering, loss of amenities of life, and loss of enjoyment of life (some jurisdictions, eg New South Wales, also include disfigurement, and loss of expectation of life). Several jurisdictions have imposed thresholds that a claimant must meet as a prerequisite to suing for damages at common law.

The new law of Torts

An essential text for tort law students, this is the first to comprehensively cover recent tort reform legislation as enacted in each Australian jurisdiction, and to deal with the impact these reforms have had on the common law. Both authors from Deakin University, Victoria.

Causation in law and medicine

Causation is an issue that is fundamental in both law and medicine, as well as the interface between the two disciplines. It is vital for the resolution of a great many disputes in court concerning personal injuries, medical negligence, criminal law and coronial issues, as well as in the provision of both diagnoses and treatment in medicine. This book offers a vital analysis of issues such as causation in law and medicine, issues of causal responsibility, agency and harm in criminal law, causation in forensic medicine, scientific and statistical approaches to causation, proof of cause, influence and effect, and causal responsibility in tort law

The new law of torts

The New Law of Torts third edition continues to question whether foundational principles and policies of torts law, reflect the social and moral values of modern Australian society. Living up to its name as The New Law of Torts, this book has been up-dated with the latest legislative and judicial development as well as the recent major cases, reflecting the changing nature of tort law.This is an essential and accessible text as it provides a clear and succinct discussion of the interface between the statutory regime in each jurisdiction and the common law. It comprehensively covers the law as it is applicable to the whole of Australia. The book has clearly delineated parts, sections and topics for each genus of torts (trespass, action on the case, statutory wrongs, etc.), and each species (battery, assault, negligence, nuisance). Headings and sub-headings provide useful breaks in the text, and selected cases are used not only as authorities, but also as illustrations of principle and judicial reasoning.

Quo iure? Defendants' liability to rescuers in the tort of negligence

The year 2001 marks the 80th anniversary of Cardozo J's judgment in Wagner v International Railway Co 232 NY 176 (1921). This article examines theoretical and procedural problems associated with the concept of duty of care as a foundation for the defendant's liability in negligence to altruistic rescuers, and suggests that Cardozo J's judgment did not establish the principle that defendants owe rescuers a duty of care in negligence. It is argued that subsequent judgments failed to provide the duty of care owed to rescuers under tortious negligence with proper jurisprudential foundations. Conceptual difficulties inherent in a jurisprudential principle that would provide physically injured rescuers with a legal right to a duty of care from the defendant under the tort of negligence were compounded once compensation for negligently occasioned pure emotional distress became available. This article analyses various theories of recovery for pure psychiatric injury and the classification of rescuers into primary and secondary victims. It proposes a solution in the form of a separate cause of action on the case for liability to injured rescuers, partly based on the principle of necessity that governs the Roman action for negotiorum gestio. Cases from the United States, England and Australia are used to illustrate the similarities and differences in the development of and approaches to, the law of rescue.

Principles of business law

Contents: 1. Development and overview of the Australian legal system -- 2. An introduction to the law of contract -- 3. Intention -- 4. Consideration -- 5. Capacity -- 6. Genuine consent -- 7. The contents of the contract -- 8. Termination -- 9. Remedies -- 10. The tort of negligence and liability for pure economic loss -- 11. Agency -- 12. Partnerships -- 13. An overview of business organisations -- 14. The day-to-day existence of business corporations -- 15. Trusts.

An overview of liability and compensation for personal injury in China under the general principles of civil law

This article reviews the personal injury tort system in the People's Republic of China (PRC). The Chinese torts law has a number of unique features. To begin with, it is quite new — the legal framework of torts law was established only in 1986. The unique features of the Chinese torts law also stem from its long and difficult evolution over nearly 40 years. Equally important has been the remarkable blend of influences that have shaped its current law — a mixture of socialist objectives, capitalist pragmatism, and feudal doctrines combined with jurisprudential models taken from a range of western civil codes and, more recently, the common law.

Part one of the article briefly analyses the most important features of the existing Chinese legal system. Part two provides a background to the enactment of the General Principles of Civil Law (GPCL), which incorporates Chinese torts law. The review looks at the development and drafting of the GPCL legislation, and the influences that guided the formulation of legal principles. Part three of the article provides an overview of the torts law provisions in the GPCL. Part four examines the law of personal injury established by the GPCL. Part five uses some case studies to illustrate the principles highlighted in the previous two parts and part six contains a brief conclusion and some pointers to the directions that Chinese torts law may take in the future.

The roots of punitive damages at common law: a longer history

This Article aims to revisit the historical development of the doctrine ofexemplary or punitive damages. Punitive damages are anomalous in that they lie in both tort and crime, a matter that has led to much criticism by modern commentators. Yet, a definitive history of punitive damages does not exist to explain this anomaly. The main contribution of this Article, then, is to begin such a history by way of a meta-narrative. It identifies and links the historically significant moments that led to punitive damages, beginning with the background period of classical Roman law, its renewed reception in Western Europe in the twelfth and thirteenth centuries that coincided with the emergence of the English common law,the English statutes of the late thirteenth century, to the court cases of Wilkes v. Wood and Huckle v. Money in the eighteenth century that heralded the "first explicit articulation" of the legal principle of punitive damages. This Article argues that this history is not linear in nature but historically contingent. This is a corrective to present scholarship, which fails to adequately connect or contextualize these historical moments, or over-simplifies this development over time.