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.

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 problem of voluntariness: parents and the anti-discrimination principle

Examines the theoretical justifications for the anti-discrimination protection for working parents in Australia. Implication of discrimination, voluntaries and employment; Analysis of the tort principles; Factors affecting the justification for protecting working parents.

The high court on vicarious liability

Vicarious liability (respondeat superior) is a venerable common law doctrine which holds an employer liable for the torts of employees, regardless of the fault of the employer. An employer's liability for the torts of its employees can represent a significant financial obligation and can affect both hiring and operational decisions of businesses. Vicarious liability is a prominent theme in the background of much litigation and is often the reason for litigating the issue of whether or not a worker is an employee. Vicarious liability may also arise through other relationships, such as partnership and agency. Two recent decisions by the High Court of Australia have drawn attention to the issue of vicarious liability. These decisions illuminate the High Court's view of vicarious liability's two main streams: negligence (Hollis v Vabu Pty Ltd) n2 and intentional tort (NSW v Lepore). [*2] n3

The right to privacy and corporations

Traditionally the right of privacy has not been recognised at common law. However, recently the High Court has indicated that it may be willing to develop a new tort of invasion of privacy. Several of the justices have stated that the new action would only relate to natural persons, not corporations. This is because the principles said to underpin the right to privacy, autonomy and dignity, are supposedly inapposite to corporations. This article argues that this reasoning is flawed. Neither the right to autonomy nor dignity is capable of underpinning the right to privacy. Hence, no sustainable basis has so far been advanced for restricting the availability of any future tort of invasion of privacy to individuals. This article also questions whether a separate tort is needed in view of the protection already provided to the privacy interests of individuals and corporations under the equitable doctrine of confidence.

Is the treatment of economic loss by the Australian courts in torts cases anomalous?

The well developed economic theory of tort liability has never been able to comfortably accommodate negligence cases causing pure economic loss as opposed to physical damage or injury. In fact, contrary to received opinion, Australian Courts at least, are increasingly allocating pure economic losses to achieve predominantly an efficiency objective, with corrective justice notions relegated into the background. Consequently, it is difficult to classify these cases as anomalous in the sense of falling outside the efficiency paradigm.

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

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.

Educational malpractice : legal cases and educators' views

The notion of being negligently and legally liable for poor teaching that results in the failure of students being able to achieve expected educational outcomes is an unimaginable prospect. However, there is an emerging trend of legal proceedings being brought against teachers, blaming them for low scores in literacy, numeracy or even the failure to pass an examination. The duty implied on educators to ensure the educational well-being of their students and the breach of such duty is what is commonly termed in the literature “educational malpractice” or “educational negligence.”

In this article, several cases relating to educational malpractice that took place in the U.S., the U.K., and Australia are reviewed, and the cases demonstrate that the courts are beginning to show a willingness to extend the tort of negligence to students’ intellectual harm. The author then conducted a small-scale investigation to ascertain the views of school principals regarding this issue, with very interesting results.

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.